Garth v Burns - [2022] QCATA 53

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Garth v Burns [2022] QCATA 53

PARTIES:

ADRIAN GARTH

(appellant)

v

ANDREW BURNS

(respondent)

APPLICATION NO/S:

APL014-21

ORIGINATING APPLICATION NO/S:

MCDO1733/19 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

29 April 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1.   Leave to appeal is granted.

2.   The appeal is allowed and the order made on 4 December 2020 is set aside.

3.   The matter is remitted to the tribunal for reconsideration.

4.   The parties must by close of business on 1 June 2022 provide to the tribunal, and at the same time provide to the other party:

a.   Evidence showing whether or not it was agreed that Andrew Burns would supply Enduroturf Deluxe 35 to Adrian Garth (as opposed to any other product), showing this product being prescribed or identified by the parties, and showing the importance of this to the contract.

b.   A legible photocopy of the contract between the parties and its terms in full, and including any scope of works, quotations, plans, and variations.

c.   Evidence showing what the parties agreed Mr Burns would do when attending the site in April 2019.

d.   Evidence showing whether it is reasonable for Mr Garth to replace the turf with that specified in the contract. In case this is found by the tribunal to be unreasonable, the parties may provide evidence as to the difference in value between a turf installation with Enduroturf Deluxe 35 and the turf installation as actually done.

5.   By close of business on 1 June 2022 the parties may provide the tribunal (and at the same time, the other party) with updated quotes for remedial work.

6.   A copy of the transcript of evidence of the hearing of 21 August 2020 shall be placed on the minor civil dispute file so that it may be received in evidence at the remitted hearing.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where a tribunal Adjudicator found that a contractor had been denied the opportunity to complete and rectify work – where, on the Adjudicator’s findings, the work which would have been completed would have been a breach of contract because the goods supplied were not as specified in the contract – whether the consequence of the denial of opportunity to complete the work had the consequence held – whether there was an error of law requiring remission on appeal

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This is an appeal brought by Adrian Garth about landscaping work done by Andrew Burns, who trades as Andrew Burns Landscaping and Construction.
The landscaping work included the laying of artificial grass turf, and this work is the subject of this dispute. Due to inclement weather Mr Burns could not complete the work as quickly as anticipated, leaving outstanding some repairs to the joins, a repair to a burnt area, additional sanding and a power broom to even the finish.
Meanwhile Mr Garth discovered that the turf product which Mr Burns had installed was Urban Turf Windsor and was not the product specified in the contract, which was Enduroturf Deluxe 35. He also had reservations about where the drain for the turfed area had been positioned by Mr Burns.
Mr Garth therefore withheld the sum of $7,608 from the contract amount payable to Mr Burns and in an application made to the tribunal on 25 November 2019, he sought relief from having to pay that amount. He also sought compensation of $2,919 being the amount in addition to the $7,608 he would have to pay other contractors to have the correct turf product installed. His total claim against Mr Burns was therefore effectively $10,527 plus the filing fee.
Mr Burns counterclaimed for payment of the remaining amount due on the contract of $7,608.
On 21 August 2020 an Adjudicator heard from the parties, read the written material, and reserved the decision. On the face of it, the main issues which arose for determination by the Adjudicator were:
(a)Whether Enduroturf Deluxe 35 was specified in the contract and if so, whether Mr Burns was in breach of contract by installing a different turf product.
(b)Whether the position of the drain for the turfed area was specified in the contract and if so, whether Mr Burns was in breach of contract by installing the drain in a different position, or otherwise failed to use due care and skill in positioning the drain.
(c)If Mr Burns was in breach of contract what was the correct level of damages, and the correct order to make on the counterclaim.
On 4 December 2020 the Adjudicator gave an oral reserved decision and ordered Mr Garth to pay to Mr Burns $4,298 – that is the outstanding amount on the contract sum of $7,608 with an offset of $3,310 because of the wrong turf product. The Adjudicator gave reasons for the decision as follows.
The Adjudicator identified the contract between the parties as having been governed by a Master Builders Basic Works Contract (Residential) dated 1 February 2019, with a contract price originally of $24,390 but with variations including the supply and installation of the artificial turf, increasing this to $42,443. Apart from reciting the parties’ submissions about the contract, the Adjudicator did not refer to the contract further. The reason for this was probably that the copy of the contract on the file was largely illegible, because it had been printed from photographs which were out of focus.
As for issue (a), the Adjudicator noted that Mr Burns was not disputing that the agreement was to install Enduroturf Deluxe 35, but that he was saying that the product was not available when required, and that he laid a product which he regarded as comparable.[1] The Adjudicator decided that it did not matter whether or not the substituted product was suitable, because it was a breach of contract not to supply the specified product.[2] In making that finding, the Adjudicator must have been satisfied that the specification of Enduroturf Deluxe 35 was important enough to make it a term of the contract that the specified turf was supplied and no other product would suffice, or possibly that this was a supply of goods by description, which therefore had to comply with the guarantee in section 56 of the Australian Consumer Law that such goods must correspond with the description.
[1]Transcript 4 December 2020 1-2 line 36.
[2]Transcript 4 December 2020 1-2 line 45, 1-6 line 17.
As for issue (b), the Adjudicator recited Mr Garth’s allegation that the main drain was incorrectly positioned so that rainwater pooled,[3] but made no specific findings on liability on this issue. There was also a suggestion in the quotes for remedial work that the base may need replacing. The Adjudicator was doubtful that this was necessary and thought it was only included in the quote for rectification work because the contractor was not prepared to ‘warrant the work of others’.[4]
[3]Transcript 4 December 2020 1-2 line 28.
[4]Transcript 4 December 2020 1-5 line 26.
The Adjudicator accepted that the reason why the work to the turf had not been completed was due to poor weather at the time, followed by the dispute about whether the correct turf had been laid. The Adjudicator found that this resulted in Mr Garth prohibiting Mr Burns from entering the site to complete the work and to rectify defects.[5] In this respect the Adjudicator referred to Mr Garth’s email of 1 April 2019, and then when Mr Burns tried to attend the site he was denied access by text message.[6]
[5]Transcript 4 December 2020 1-3 line 5, 1-6 line 2.
[6]Transcript 4 December 2020 1-4 line 14, 1-5 line 33.
The Adjudicator said that Mr Burns made concerted efforts to complete the work and there was no evidence that he was not capable of doing so, given the opportunity.[7] The Adjudicator found that Mr Garth was wrong to prohibit Mr Burns from completing the work and rectifying any defects.[8]
[7]Transcript 4 December 2020 1-4 line 20, 1-6 line 8.
[8]Transcript 4 December 2020 1-6 lines 11-24.
As for issue (c), the Adjudicator did not accept that the correct level of damages was a second quote to rectify the work which was for $12,920 plus GST, because it did not come from an independent source.[9] Instead, the Adjudicator decided that the most which could legitimately be claimed was the cost of the incorrect turf laid,[10] but that Mr Burns was entitled to full payment on the contract, seemingly because Mr Burns had been prevented from completing the work and rectifying any defects.
[9]Transcript 4 December 2020 1-5 line 20.
[10]Transcript 4 December 2020 1-6 line 15.

The appeal

In this appeal, Mr Garth says that the Adjudicator was in error in finding that he had prohibited Mr Burns from completing the work and rectifying the defects, but also that the outcome of the case did not properly represent the fact that the wrong turf had been laid.
For the prohibition issue, he says that the prohibition in his email of 1 April 2009 was lifted by an email dated 10 April 2019 giving permission for Mr Burns to attend the site on 15 April 2019. Mr Garth has attached the first page of the email of 10 April 2019 to his application for leave to appeal or appeal. The difficulty with this is that the email of 10 April 2019 was not before the Adjudicator, and the Appeal Tribunal cannot look at it without giving leave to Mr Garth to rely on additional evidence. On 17 March 2021 the Appeal Tribunal gave directions requiring any party who wished to rely on additional evidence to apply formally for such leave, and that the application should include submissions about why the evidence was not available to the tribunal at the original hearing, why it is important and why it should be accepted. This has not been done. The result is that in this appeal I cannot have regard to the email of 10 April 2019.
Instead, it is necessary to see whether the Adjudicator’s finding that Mr Burns had been prohibited from completing the work and rectifying defects was open to the Adjudicator on the evidence available at the hearing.
In addition to the email of 1 April 2019, the Adjudicator had an iMessage from Mr Garth which also tended to show prohibition. It said:
Andrew I have lost confidence in your team to fix the turf and I don’t want you cutting a patch out to try and fix the burnt section as well.
However, a later iMessage from Mr Garth before the Adjudicator demonstrated some room for compromise. It said:
I am happy to use your installer as long as the scope of rectification work is agreed upon and the expected finish of work agreed upon. Also we need to agree on the appropriate warranty that comes with a professional installers work of the turf.
Let me know if you and your installer want to come out and view the job.
The Adjudicator also had iMessages showing that Mr Burns did attend the site on 15 April 2019 and did some rectification work. There was also oral evidence about this given at the hearing on 21 August 2020 from both sides. Mr Garth’s evidence about this at the hearing was that his email of 1 April 2019 only stood for a short length of time while he made enquiries, and that he had quickly come to an agreement with Mr Burns under which his team could ‘come back and do everything’,[11] and to finish ‘all those points’,[12] but although they did come back and finished the remainder of the job they never touched the turf.[13]
[11]Transcript 21 August 2020 1-10 line 17.
[12]Transcript 21 August 2020 1-10 line 20.
[13]Transcript 21 August 2020 1-10 line 20.
Unfortunately Mr Garth did not explain at the hearing exactly what he meant by ‘everything’ and ‘all those points’. The same difficulty arises in this appeal. Mr Garth says that the agreement was that Mr Burns and his team would have ‘full access to complete all rectification work’.
It is unclear from this evidence and these comments whether Mr Garth was agreeable at that time for Mr Burns to finish the installation of the turf as supplied, or whether he was expecting Mr Burns to replace the turf with the contractually agreed product.
In his evidence Mr Burns agreed that he had attended the site in April 2019 and that he had not worked on the turf. He gave various explanations for this: that it was too wet at that time,[14] that Mr Garth had said he had lost faith in his team,[15] that he had received a letter from Mr Garth’s solicitors,[16] and that it was better for Mr Garth to get someone else to lay the turf that he wanted.[17] It is clear that from Mr Burns’ perspective that if he had worked on the turf he would not have replaced it with the contractually agreed product.[18] Instead, the most he would have done is to complete the turf installation as supplied, fixing the joins and the burn and finishing it properly, or possibly he may have removed all the turf altogether so that Mr Garth could replace it.[19]
[14]Transcript 21 August 2020 1-7 line 27, 1-10 line 37.
[15]Transcript 21 August 2020 1-6 line 47.
[16]Transcript 21 August 2020 1-7 line 28.
[17]Transcript 21 August 2020 1-13 line 37, 1-15 line 14.
[18]Transcript 21 August 2020 1-11 line 9.
[19]Transcript 21 August 2020 1-11 line 41.
Overall, the impression I get from this evidence, but which should not be taken as a finding of fact, is that there was no agreement between the two sides about exactly what Mr Burns would do with the turf in April 2019. If this is correct, it might explain why Mr Burns did no work on it at that time.
From the evidence before the Adjudicator it does seem difficult to say that Mr Burns was prohibited from attending the site and completing the work and rectifying any defects as found. And even if there was such a prohibition, it is difficult to see that the consequences of the prohibition were as the Adjudicator found. As Mr Garth rightly submits in the appeal, Mr Burns was clear in the hearing that he was not going to replace the turf with the product that had been contractually agreed anyway. This means that having found that supplying the wrong turf was a breach of contract which required replacing, the Adjudicator should have found that the prohibition had no effect on Mr Garth’s available remedy because the job would have to be redone anyway.
It must follow that leave should be given to appeal and the order made on 4 December 2020 should be set aside.

Resolution of the appeal

This appeal cannot be resolved by the Appeal Tribunal and will need to be remitted to the tribunal for reconsideration. One reason for this is that the parties have not provided the tribunal with the documentation that is required properly to resolve the claim, for example a properly legible copy of the contract and proper evidence showing that it was a contractual term that Enduroturf Deluxe 35 should be used. Currently the evidence about what work the parties agreed Mr Burns would do in April 2019 is very obscure and there may be further evidence about that. It is unclear whether Mr Garth accepted the turf which was laid at that time. Such evidence may affect the correct measure of compensation.

Conclusion

In this appeal it is difficult to find support in the evidence for the Adjudicator’s conclusion that the contractor was prohibited from completing the turf installation and rectifying any defects, but even if there was such a prohibition, the consequences do not appear to be those stated by the Adjudicator.
Leave to appeal is granted and the existing order made is set aside. The matter is remitted back to the tribunal for reconsideration, with appropriate directions.