Genuine Recycling Group Pty Ltd v Eurokey Recycling (APAC) Pty Ltd - [2013] QCAT 642

CITATION:

Genuine Recycling Group Pty Ltd v Eurokey Recycling (APAC) Pty Ltd [2013] QCAT 642

PARTIES:	Genuine Recycling Group Pty Ltd (Applicant)
v
Eurokey Recycling (APAC) Pty Ltd (Respondent)

APPLICATION NUMBER:

MCD1177/13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

23 September 2013

HEARD AT:

Brisbane

DECISION OF:

Member Favell

DELIVERED ON:

25 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

The respondent pay to the applicant the sum of $8920.60 forthwith.

CATCHWORDS:

Minor civil dispute – where agreement for recycling material to be supplied at an agreed price – whether breach of agreement

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Xuafei Cao

RESPONDENT:

Jon Byrne (Director of the Respondent)

REASONS FOR DECISION

Genuine Recycling Group Pty Ltd applies in the Tribunal’s minor civil dispute jurisdiction for $8,292.60 said to be monies due and owing for goods Genuine Recycling Group Pty Ltd provided to Eurokey Recycling (APAC) Pty Ltd.
It also claims a filing fee of $275 and interest of $174.90 calculated at 10% for 77 days.
The applicant says that on or about 22 March 2013 it provided goods to the respondent at an agreed price of $14,790.60 inclusive of GST.
It says that on 22 March 2013 the respondent collected two truckloads of plastics from the applicant’s depot. Load one was approximately 22.5 tonnes and load two was approximately 22.32 tonnes. They say that the unit price agreed between the parties was $300 per tonne.
On 22 March 2013 the applicant issued an invoice (GRG3675) to the respondent. The tax invoice described the product type as “plastics”, the quantity as “40MT” and the unit price as “$300”. In fact, the price claimed inclusive of GST by that invoice was $13,200.
The respondent has made payments totalling $6,750 to the applicant. The applicant contends that the outstanding balance owed is $8,290.60.
The respondent disputes some of the allegations in the application and says if anything it only owes $1,237.50 to the applicant. The primary reason, it seems, for the respondent denying the claim is concerned with the quality of the material supplied.
Xuefei Cao, also known as Clint Cao, is the business development manager of Genuine Recycling Group Pty Ltd.
Mr Cao provided a witness statement (exhibit one). He dealt with the respondent in negotiating the deal which is the subject of the dispute.
He met with Jon Byrne on or about November 2012 when he and a colleague visited Eurokey Recycling. In March 2013 Mr Byrne called him and asked him to look at a plastic film that he wanted to sell on behalf of the respondent. Mr Cao said that he went to look at the stock and it was the same or similar plastic film to that which the applicant sells in its business as a national company with depots in most regional centres dealing predominately in recycling of paper and cardboard but also of plastic including plastic film and bottles.
Mr Byrne told Mr Cao that he wanted $600 per tonne for the stock and Mr Cao told him that he would never get that price and that they would sell at about $500 per tonne. He said that Mr Byrne was interested in purchasing from Genuine Recycling Group and was told that they had plastic film and banana bags which they would sell to him. Mr Cao says that there were two container loads of plastic product and banana bags in their yard at the time.
Mr Cao says that Mr Byrne came to their site and looked at the two container loads of plastic stacked in two forty foot rows three bales high and at that time Mr Cao offered to sell that material to him at $450 or $400 per tonne because it included the banana bags. The offer, he said, was for all the plastic in the yard, both container loads including the banana bags. Mr Byrne told him that he would get back to him.
The Tribunal heard that banana bags have a plastic film on them which can be recycled but are of poorer quality than plastic film.
Mr Cao said that on 20 March 2013 whilst he was travelling in a motor vehicle with other persons, Mr Byrne called and offered $300 per tonne for the plastic material that he had inspected. He says that a decision was made by him and his two companions that they would sell at this price.
Ming Liang from the applicant sent an email to Mr Byrne and copied it in to Mr Cao on 20 March 2013 at 7.50pm confirming the deal. The terms were said to be ‘$300 per metric tonne with 50% deposit due on 22 March 2013 and the adjusted balance due once the load was weighed and removed from the yard, CODX works’.
On 23 March 2013 the applicant issued its invoice based on actual quantities.
On 28 March 2013 Mr Cao received a telephone call from Mr Byrne complaining that the material was of poor quality. On 2 April 2013 at 7.50am Mr Cao received an email from Mr Byrne in which a complaint was made that the quality of the material was not what he had accepted. Mr Byrne said that he did not want the first load but only the second load. Mr Cao said that he wanted to take the best material at the discounted price.
In a follow up telephone call Mr Cao indicated that he was willing to consider an offer to return the material and repay the deposit but he was not prepared to pay the respondent for his freight costs.
In an email dated 2 April 2013 at 4.15pm Mr Byrne said that he underestimated the volume of low grade material that was there.
Mr Byrne seems to contend that the persons who were working in the yard at the time were selecting material which was to be loaded. Mr Cao rejects that assertion because the agreement was, he says, that the respondent would take both container loads being all the plastic in the yard at the time.
In a statement (exhibit two) Wayne Ross Turner, the site manager of Genuine Recycling Group Pty Ltd, said that he was present when Mr Byrne inspected two container loads of plastic product which was stacked in two rows of bales about 40 foot long and stacked three bales high. He says that the loads contained bales of banana bags. He said that Mr Byrne had walked along rows of bales and had the opportunity to inspect the product. He says that the rows of bales inspected were not moved, altered or interfered with in any way between the time of inspection and the time of collection. When the Eurokey trucks arrived he moved them into the yard first so that they did not have to incur costs for waiting in line. He says that the first load was dispatched and he then moved on to other duties. Docket number 1224 refers to that load. He made notes of weighbridge details supplied to him by Eurokey recycling. He says that the first load weighed 22.5 and the second load was 22.320.
Ming Liang is the person responsible for issuing invoices for the applicant’s business. He issued invoice GRG3675 based on quantities he received from Mr Turner and based on the rate confirmed by Mr Cao. His evidence was that the applicant has not been paid the outstanding balance of $8290.60. He was present in the vehicle when Mr Cao received a telephone call from Mr Byrne on 20 March 2013. He said that it was agreed that Mr Byrne for the respondent would take all of the plastic product in the yard including the banana bags at a price of $300 per tonne. He said that normally they would sell product at about $400 to $600 per tonne but it was mixed plastic and the banana bags are less value so it resulted in the price of the material being reduced.
He said he confirmed the details of the agreement with Mr Byrne in an email on 20 March 2013 at 5.50pm. That email has been provided. That email confirmed that the price was $300 per metric tonne, that Mr Byrne would collect the material, he would take the entire product in the yard including the banana bags and that payment would be on the same terms as Eurokey’s deal with the applicant relating to a cardboard transaction, that is 50 percent deposit immediately and the balance on presentation of the adjusted invoice.
By an email of 24 March 2013 Mr Liang asked for payment of the deposit and he enclosed a proposed invoice showing the estimated weight and rate so as to calculate the deposit of 50 percent. On 25 March 2013 at 5.30am he received a response from Mr Byrne indicating that it would be “no problem”. The deposit was paid.
Mr Liang said that on 28 March 2013 he received the actual weight of the plastic product from Wayne Turner and he amended invoice number GRG3675 to reflect the final price. He sent to Mr Byrne and the respondent’s accountants the final invoice under cover of an email calling for payment of the sum of $8290.60.
Exhibit four is a series of photographs attached to an email sent by Mr Liang to Eurokey on 19 March 2013. The contents of the email attaching the photographs said:
As per our conversation yesterday, could you please me (sic) your price list for our products in Geebung factory? I am still waiting for your information so that we can work out some business. By the way, here are the photos which we are doing for the PE-FILM grade. Please let me now your price for the following 100 clear 98/2 film, 95/5 film, 90/10 film, 80/20 film.
Exhibit five is a series of three photographs showing the film in the yard as at 15 March 2013.
Exhibit seven is a series of photographs showing the content of the first load on 28 March 2013.
Exhibit eight is a series of photographs showing the content of the second load on 28 March 2013.
The refusal to pay the amount agreed upon seems to be based on the quality of the two loads.
It is difficult for me to see the difference between what was supplied and what was offered.
In my view, the agreement was to take the content of the product in the applicant’s yard at the agreed price of $300 per tonne. That agreement was reached after Mr Byrne on behalf of the respondent examined the product offered.
In my view, there has not been shown to be a breach of that agreement. The agreement was not that the product was of any particular quality or quantity. No representation concerning quality was made.
In all of the circumstances I find that the applicant is entitled to the amount claimed. As there was no agreement as to interest I do not intend to make an order as to interest nor do I intend to make any order as to costs, indeed none have been approved and in this jurisdiction the normal order would be that each party would bear their own costs. I am not persuaded that I should make any other order.
The order will be the respondent pay to the applicant the sum of $8,920.60 forthwith.