Ground Environments Pty Ltd v MST View Witsunday Pty Ltd
[2010] QCAT 605
•25 November 2010
| CITATION: | Ground Environments Pty Ltd v MST View Witsunday Pty Ltd [2010] QCAT 605 |
| PARTIES: | Ground Environments Pty Ltd |
| V | |
| MST View Witsunday Pty Ltd |
| APPLICATION NUMBER: | BN083-09 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 3 August 2010 |
| HEARD AT: | Mackay |
| DECISION OF: | Paul McGrath, Member |
| DELIVERED ON: | 25 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The applicant pay the respondent the sum of $10,152.00 within 30 days. 2. There be no order as to costs. |
| CATCHWORDS : | Provision of services, terms of services agreement |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ground Environments Pty Ltd was represented by Dr Edem Birdie |
| RESPONDENT: | MST View Witsunday Pty Ltd was represented by Mr Michael Tuckerman |
REASONS FOR DECISION
The application was filed in the former Commercial and Consumer Tribunal on 21 September 2009 and Ground Environments Pty Ltd (the applicant) sought payment of an amount owing of $27,560.00, together with administration fees of $650.00, and interest in the amount of $7,599.96 calculated on 16 September 2009.
The statement of claim states that at all material times the applicant:
a) was a duly incorporated company capable of suing and being sued and
b) relevantly carried on the business of Geotechnical Investigation Services.
The statement of claim further states that at all material times the respondent was a duly incorporated company capable of suing and being sued and relevantly carried on the business of a property developer and in particular was the property developer of “View Whitsunday” a development located at 1 Macona Crescent, Cannonvale in the state of Queensland.
On 13 December 2007 in writing via email Bill Rannard on behalf of the respondent requested a fee proposal from Edem Berdie on behalf of the applicant to carry out geotechnical investigation work for the civil design of stages 1 to 3 of “View Whitsunday” a development located at 1 Macona Crescent, Cannonvale in the State of Queensland.
On 17 December 2009 a fee proposal in writing was sent from the applicant to the respondent including a Fee Schedule and a Services Agreement.
The total of the Fee Schedule for the requested geotechnical investigation work at that time was $60,071.00 inclusive of GST.
On 17 January 2008 Dennis Juda on behalf of the respondent signed the Services Agreement (“the agreement”).
On 18 January 2008 the respondent forwarded the signed Services Agreement to the applicant by facsimile transmission.
It was a term of the agreement that the applicant would provide the services described in the fee proposal and any variation jointly agreed to between the applicant and the respondent.
It was a term of the agreement that the respondent would pay the applicant any fee agreed to verbally, in writing or otherwise specified in the fee proposal including any variation thereof.
The applicant carried out the geotechnical investigation services requested by the respondent as set out in the applicant’s fee proposal and as agreed to by way of variation from April 2008 to June 2008.
For the purpose of carrying out the geotechnical investigation services requested by the respondent, the applicant hired an excavator and mobilized it to the site.
The fee proposal including the Fee Schedule was submitted on the basis that the respondent would independently arrange for the test hole locations to be pegged at the proposed site for “View Whitsunday”.
It was a variation to the agreement that WS Group would be permitted to use the excavator hired by the applicant.
Particulars
a) The respondent agreed to a verbal request from Tim McBride of WS Group, the surveyors engaged by the respondent, to utilize the excavator hired by the applicant for access clearing in advance of the survey party and prior to the actual geotechnical work.
The applicant incurred the cost of WS Group’s use of the excavator, on behalf of the respondent, in the amount of 134.5 hours at $160 per hour.
It was a variation to the agreement that the applicant attend to additional bore holes under the community centre as per the email correspondence (attaching a diagram) which was flowed between the following persons on 3 April 2008:
a) Bill Rannard on behalf of the respondent and Tim McBridge, the surveyor engaged by the respondent; and
b) Tim McBride, the surveyor engaged by the respondent and Edem Berdie on behalf of the applicant.
It was a variation to the agreement that the applicant attend to additional bore holes for a reservoir site as per the verbal request of Dennis Jude on behalf of the respondent to Edem Berdie on behalf of the applicant ton 3 April 2008.
The applicant incurred additional costs due to rain delays, which were out of the applicant’s control.
Particulars
a) Due to rain the applicant could not mobilize its engineer’s vehicle off site;
b) As a consequence of a) the applicant had to hire a vehicle to mobilize its engineer back to Mackay;
c) When the rain stopped the engineer had to be mobilized back to site.
The following invoices were sent from the applicant to the respondent pursuant to the agreement:
| Date of invoice | Date due | Amount |
| 20 April 2008 | 20 May 2008 | $ 14,553 incl GST |
| 30 April 2008 | 30 May 2008 | $ 59,790.50 incl GST |
| 30 May 2008 | 30 June 2008 | $ 15,383.50 incl GST |
| 19 June 2008 | 19 June 2008 | $ 6,996.00 incl GST |
| TOTAL | $ 96,723.00 incl GST |
On 29 May 2008 the respondent paid the 20 April 2008 invoice in the amount of $14,553 including GST.
On 16 September 2008 the respondent paid the amount of $35,000 including GST to the applicant in part payment of the 30 April 2008 invoice.
On 24 September 2008 the respondent paid the amount of $19,610 including GST to the applicant in part payment of the 30 April 2008 invoice.
The respondent has failed to pay the balance of $27,560.00 including GST to the applicant in payment of the following invoices.
| Date of invoice | Date due | Amount |
| 30 April 2008 (balance remaining) | Due 30 May 2008 | $ 5,180.50 incl GST |
| 30 May 2008 | Due 30 June 2008 | $15,383.50 incl GST |
| 19 June 2008 | Due 19 July 2008 | $ 6,996.00 incl GST |
| TOTAL | $27,560.00 incl GST |
It was a term of the agreement that the respondent would be responsible for the following amounts on any invoices remaining unpaid after the expiration of the 30 day payment period:
a) an administration fee of $25 per month;
b) interest in the amount of 15% per annum;
c) any legal costs expended to recover debts will be recoverable from the respondent.
The applicant claims the following relief:
a) a debt due and owing in the amount of $27,560.00 including GST;
b) administration fees in the amount of $650 for 13 months of arrears at $50 per month;
c) interest in the amount of $7,599.96 calculated to 16 September 2009 (which will continue to accrue until payment is made), representing 15% per annum of arrears comprising:
| Period | Amount |
| 30 May 2008 (when 30 April 2008 invoice became due) to 17 September 2008 (when $35,000 was paid and balance outstanding was reduced) – 15% of $59,790.50 incl GST – 111 days | $2,727.43 |
| 17 September 2008 to 24 September 2008 (from when $35,000 was paid to when $19,610 was paid) – 15% of $24,790.50 incl GST – 8 days | $81.50 |
| 24 September 2008 to 16 September 2009 (when $19,610 was paid and balance outstanding was reduced) – 15% of $5,180.50 incl GST – 358 days | $762.17 |
| 30 June 2008 (when 30 May 2008 invoice became due) to 16 September 2009 – 15% of $15,383.50 incl GST – 444 days | $2,806.96 |
| 19 July 2009 (when 19 June 2008 invoice became due) to 16 September 2009 0 15% of $6,996 incl GST – 425 days | $1,221.90 |
| TOTAL | $7,599.96 |
d) Legal Costs.
MST View Whitsunday Pty Ltd (the respondent) filed a statement of defence and counter claim on 28 January 2010. That statement of defence and counter claim states as follows:
Statement of defence and counterclaim
Replies to Statement of Claim
In relation to the numbered paragraphs in the Statement of Claim the Respondent relies on the following facts and says:
Paragraphs 1 (a) and (b) are admitted.
Paragraphs 2 (a) and (b) are admitted.
(i.) Subject to 3.B below Paragraphs 3 is admitted(ii.) in the third line of Paragraph 3 the words “..for the civil design..” are not admitted as the investigation was for civil design, structural and other purposes.
Paragraph 4 is not admitted. The Respondent admits receiving the letter from the Applicant on 17 December 2007, which included a Fee Schedule, with an attached form of Services Agreement.
(i.) Subject to sub paragraphs 5B and 5C below Paragraph 5 is admitted as
(ii.)the Respondent says that the Cost of the Services provided by the Applicant at that time is included in the Services Agreement, as was agreed by the parties, which is $60,071 inclusive of GST for 130 test holes.
(iii.)The Respondent admits the Fee Schedule forms part of the letter from the Applicant of 17 December 2007.
Paragraph 6 is admitted.
Paragraph 7 is admitted.
Paragraph 8 is not admitted. The Respondent says the terms of the agreement are contained in the Services Agreement and the services to be provided are contained in the e-mail from Bill Rannard of the Respondent of 13 December 2007, the letter of the Applicant dated 17 December 2007, other relevant correspondent with the Applicant including discussions with Dennis Juda, and Tim McBridge of the WS Group.
Paragraph 9 is admitted. The Respondent further says the terms by which fees are payable by the Respondent to the Applicant pursuant to the agreement are determined according to the whole of Clauses 1.3 and 10 of the Services Agreement.
10.The Respondent admits the Applicant did carry out geotechnical services pursuant to the agreement but denies it agreed to variations as claimed by the Applicant.
11.In relation to paragraph 11 the Respondent:
a.Admits that the applicant provided an excavator and mobilized same to site;
b.Says that the applicant was to perform and did perform the geotechnical investigation services pursuant to the agreement and that it did deploy an excavator to perform the services.
c.Has no knowledge the excavator was hired as this is solely within the Applicants knowledge.
12.Paragraph 12 is not admitted. The Respondent admits that it engaged its surveyors, the WS Group, to peg the test hole locations and that its surveyors did identify the test hole locations.
13.Paragraph 13, including the particulars, is denied.
Particulars
a.The services to be provide by the Applicant included as both a necessary and standard practice the excavator making access to permit access to dig the test pits.
b.The survey and clearing occurred at the same time on a co-ordinated basis which reduced the risk of the excavator having to revisit and repeg test pit locations
c.The co-ordination of the excavator with the surveyors was agreed and determined prior to commencement of the works and was not a variation to the services contracted.
d.The Applicant was fully aware of the terrain and vegetation in quoting the job, as they and Dr Edem Birdie (Applicant principal) had been on site previously to undertake geotechnical tests for the stage 4 area. For stages 1-3 Dr Edem Birdie was aware, as the Respondent’s consultant, that access was required to be prepared (cleared and benched) to all test pit locations.
14.Paragraph 14, is denied. As a term of the agreement requires the fee for any variation to agreed either verbally or in writing. No agreements as to fee was reached
.
15.Paragraph 15 is denied.
Particulars
a.There were three test holes for the community centre which was consistent with and within 130 total test holes as stated in Clause 10 of the Service Agreement. The correspondence referred to by the Applicant relates to confirmation of test pit locations and was not a variation.
16.Paragraph 16 is denied.
Particulars
a.There were three test holes for the reservoir site which was consistent with and within the 130 total test holes a stated in Clause 10 of the Service Agreement. This was not a variation.
17.In relation to paragraph 17 the Respondent denies the allegation contained therein and says that:
(i.)The Applicant has failed to adequately particularise details of the allegations of rain delay, including details of the date, persons involved, period of delay and costs;
(ii.)Any agreed cost variation as particularised has been paid fully by the Respondent.
18.The Respondent admits receiving total invoices to the sum of $96,723 incl. GST but denies $96,723 is payable by the Respondent pursuant to the agreement.
19.Paragraph 19 is admitted.
20.Paragraph 20 is admitted.
21.Paragraph 21 is incorrect, and to the extent of the error, is denied. The Respondent in fact paid $31,371 incl. GST to the Applicant on 25/09/2008.
22.
(i.)The Respondent denies that any additional sum is payable by the Respondent
(ii.)The Applicant’s claimed $27,560 is in error and should show a claimed amount by the Applicant of $15,853.
Particulars
Total Applicant Invoices $96,723
Payments by Respondent
Paid 29/5/08 $14,533
Paid 16/09/08 $35,000
Paid 22/09/08 $31,317
Total paid to Applicant by Respondent $80,870
Difference $15,853
23.Subject to the law, the Respondent admits the provisions of Clause 4 of the Services Agreement apply for invoices unpaid for 30 days, to the extent such invoices are validly and properly rendered pursuant to the terms of the agreement.
24.The Respondent claims:
(i.)That there is no debt which is due and owing to the Applicant:
(ii.)That the Respondent has fully paid any Administration fee payable and further says that the agreed administration fee is $25 per month and not $50 as claimed by the Applicant; and
(iii.)That interest payable by the Respondent, to the sum of $2,675-13, has been paid in full to the Applicant.
(iv.)That no legal costs are payable by the Respondent
Particulars
Interest paid by the Respondent is calculated as follows:
| Interest Rate | From | To | No of Days | Interest |
| 15% | Date Invoiced | Date Paid | At 15% p.a. | |
| 14,553.00 | 5/6/2008 | 5/29/2008 | 24.00 | 143.54 |
| 59,790.50 | 5/14/2008 | 9/16/2008 | 126.00 | 3,096.00 |
| (16,445.00) | 5/14/2008 | 9/16/2008 | 126.00 | (851.54) |
| 15,383.50 | 6/30/2008 | 9/26/2008 | 89.00 | 562.66 |
| (5,448.50) | 6/30/2008 | 9/26/2008 | 89.00 | (199.28) |
| 6,996.00 | 7/19/2008 | No interest entitlement | 0 | |
| Total: | 2,751.38 |
DEFENCE PARTICULARS AND COUNTERCLAIM
25.
(i.)The Respondent has paid the Applicant in total $80,870;
(ii.)Despite detailed written requests from the Respondent, the Applicant has either failed, refused or neglected to address or adequately detail to the Respondent the proper basis of the variations claimed as part of the $96,723 invoiced;
(iii.)As part of the $80,870 paid by the Respondent, the respondent paid to the Applicant an amount of $10,152.62 (the “Over Payment”), in excess of what the Applicant is entitled to be paid pursuant to the terms of the agreement, as a good faith gesture to settle the dispute amicably and to avoid further time, overhead costs and litigation.
(iv.)The Applicant was advised by the Respondent that the Respondent would seek repayment of the Over Payment should the matter proceed litigation.
(v.)The Respondent claims $10,278.87 from the Applicant.
Particulars
a)(i) Pursuant to Clause 10 of the Services Agreement less any credits allowed for by the Applicant. The Applicant allowed and the Respondent accepted credits of $2,172.50.
(ii) The Respondent has paid the Contract Price less credits in full as follows:
$14,553 on 29/05/2008
$35,000 on 16/09/2008
$8,345-50 on 26/09/2008 being part of $31,317 paid 25/09/2008
$27,898.50
b)The Applicant has rendered total net variations (after deducting credits of $2,172-50 allowed by the Applicant) above the Contract Price, inclusive of GST of $36,652 (“Variations”). The Respondent paid $9,935 inclusive of GST in relation to the Variations on 25/09/2008 an denies any further variation payments are payable to the Applicant.
(ii) The Applicant has refused to provide adequate comment, detail and justification to the Respondent concerning the rendered Variations forcing the Respondent to unilaterally determine in good faith what Variations were property payable.
Particulars
(i) A variation allowance for unforeseen events re excavator hire and clearing:
20% $3,520*:
(ii) A variation allowance for unforeseen events re engineer fieldwork of:
19% $3,762*
(iii) A variation allowance for accommodation & meals of:
$900
(iv) A variation for vehicle ex Mackay of:
$350
Total Variations paid $9,935
*The Respondent provided a generous allowance for excavator hire and fieldwork, and considers that actual amounts payable pursuant to the Services Agreement terms for these items are less than the sums paid by the Respondent.
c)Clauses 1 and 3 of the Services Agreement states the basis upon which Variations are payable.
d)Pursuant to clause 4 of the Services Agreement the Respondent has paid the Applicant:
(i)Interest $2,751.38 on 25/09/2008
(ii)Administration Fee $82.50 on 25/09/2008
e)
(i) In addition to the payments made by the Respondent as detailed in this paragraph 25 sub clauses a.b.c and d. the Respondent has made a further payment to the Applicant of $10,152.62 in good faith above what the Applicant is entitled to be paid, pursuant to the terms of the Services Agreement, in an attempt to fully and finally settle the dispute between the Applicant and Respondent, and avoid unnecessary time, legal and litigation cost.
(ii)As the Applicant refused the respondents offer to settle the dispute, the Applicant has been paid $10,152.62 in excess of its entitlement pursuant to the terms of the Services Agreement.
(iii)The Respondent claims repayment of the Over Payment as follows:
Total Payment by Respondent $80,820
Less
Contract Price paid less credits given ($57,898.50)
Variations paid ($9,935)
Interest ($2,751.38
Administration Fee ($82.50)Over Payment claimed by Respondent $10,152.62
26.In the first alternative the Respondent Counter Claims that:
(i)The Applicant had prior to the agreement detailed knowledge of the Property, including its steepness, vegetation, topography and accessibility.
(ii)In addition to proving the drilling services pursuant to the agreement the Applicant was also the geotechnical consultant and geotechnical expert advisor to the Respondent. De Edem Birdie is the Applicants geotechnical engineer, a principle and director of the Applicant who managed the consultancy relationship with the Respondent.
(iii)The Respondent relied upon the representations of the Applicant in the Fee Schedule in entering into the Services Agreement, and on the appropriateness and reasonableness of the Fee Schedule prepared and provided to the Respondent by the Applicant.
(iv)The Contract Price was determined and agreed in reliance on the Fee Schedule;
(v)The Applicant has claimed Variation costs, which to the extent foreseeable and reasonably predictable to the Applicant, are costs which are not claimable by the Applicant, pursuant to clause 3 of the Services Agreement.
(vi)The Applicant was careless and/or reckless in providing its Fee Schedule time estimates, so as to expose the Respondent to foreseeable cost increases, which costs increases were reasonably identifiable by the Applicant, and to that extent are not payable by the Respondent under the agreement.
(vii)The Respondent has paid and claims as a maximum that a total of $9,935 in variations is or may be payable pursuant to the agreement.
(viii)The Respondent claims the Over Payment of $10,152.62 from the Respondent.
27.In the second alternative the Applicant Counter Claims:
(i)The Applicant provided expert geo-technical consultancy services to the Respondent
(ii)Pursuant to the agreement the Applicant provided the Respondent contractor earthmoving, drilling and excavation services.
(iii)As both a consultant and contractor to the Respondent the Applicant had a potential conflict of interest to act in the best interests of the Respondent, which required a standard of care and level of disclosure by the Applicant appropriate for an expert providing consultancy services to the Respondent.
(iv)The Applicant owed a duty of care to fully disclose and provide reasonable time and estimates to complete the works, the subject of the agreement.
(v)The Applicant based its time estimates in the Fee Schedule for up to 130 test holes, 110 engineer’s hours and the use of a 20 or 30 tonne excavator for 110 hours. The engineer times and excavator times invoiced, and underestimated by the Applicant, amounted to an underestimate of 40% (163 hours invoiced against 100 hours in the Fee Schedule for engineers costs) and an underestimate of 136% (259.75 hours invoiced against 100 hours in the Fee Schedule for excavator costs) respectively.
(vi)The Applicant did less than 130 test pit holes.
(vii)The Respondent relied on the Applicants time estimates and the Applicant breached its duty of care in ensuring its time-based estimates were reasonably based in the circumstances.
(viii)The Respondent has suffered foreseeable costs, loss and damage to not less than the amount of the Over Payment, and claims repayment from the Applicant of the Over Payment and costs.
The Respondent claims that:
(a) By declaration relied, that no further payments are payable by the Respondent to the Applicant pursuant to the agreement.
(b) That the Applicant refunded to the Respondent the Over Payment amount of $10,152-60 with interest
(c) Costs.
27. The applicant subsequently filed a reply and answer to the respondent’s defence and counterclaim which reply was later amended. The respondent subsequently replied to the amended reply and answer.
28. The matter was heard in Mackay on 3 August 2010, Mr Edem Berdie, a director of the applicant appeared as did Mr Mike Tuckerman, a director of the respondent and Mr Henry Dennis Juda, who was a director and project manager for Residential Property Investments Pty Ltd. Mr Juda, as well as Mr Tuckerman and Mr Berdie, had all filed statements in the Tribunal prior to the hearing. Mr Juda in his statement indicated that his company RPI was engaged as agents to manage all aspects of the respondent’s property at Cannonvale and he was responsible for the recommendation of the appointment of Dr Edem Berdie and his company, Ground Environment Pty Ltd, in relation to the respondent’s property.
29. Mr Juda stated that Mr Berdie and his company were engaged by RPI to act in the capacity of MST’s expert consultant concerning all geotechnical testing and related matter which related to the property. Mr Bill Renard and Mr Juda negotiated the terms and arranged for a services agreement contract dated 17 January 2008 with the applicant. Mr Juda stated that the property had a residential development approved for stages 1, 2 and 3.
30. Mr Juda stated that Mr Berdie was invited to submit his fixed price quotations in separable portions to carry out geotechnical investigations and related clearing and batting works to stages 1, 2 and 3. Stage 4 was subject to an appeal against the Whitsunday Shire Council. There was never any departure from the fact that the respondent’s board was adamant that they would accept nothing less than a fixed price contract. This was conveyed to Mr Berdie on numerous occasions.
31. Mr Juda stated that his company accepted Mr Berdie’s fixed priced tender and the applicant’s price on that very understanding was inserted into the agreement in clause 10, the only minor variations totalled $4,506.00 were
Accommodation and meals $900 (including GST)
Vehicle from Mackay $350
1 wet weather day –
8 hours machine hire at $160 per hour
Engineer 8 hours at $180 per hour plus GST
Total $2,992.00
2 draw pads/stage 4 – 1.5hrs $160.00 plus GST, equals $264.00
32. Mr Juda stated that the actual test pit location were to be identified by the surveyors W S Group who were engaged by the respondent. The applicant was provided with all contact details and drawings and was instructed to liaise directly with the W S Group to ensure the entire operation ran smoothly and to keep Mr Juda briefed on the proceedings. Mr Juda stated that it was always understood by Mr Berdie and the applicant that the applicant would work with W S Group in formulating appropriate strategies in order to carry out their respective tasks efficiently within the terms and timeframes stated in the agreement.
33. Mr Juda stated that because Mr Berdie and the applicant’s time based estimates based on the applicant’s invoicing seemed to be wrong, he wanted to discuss the cost of the 20 tonne as opposed to a 30 tonne excavator to formulate a fair proposal to put to the respondent for its consideration but Mr Berdie never allowed this discussion to develop.
34. Mr Juda stated that when the contract was negotiated Mr Berdie was very firm that both the machine hours and engineered hours were fully costed more than adequate and that the company rely on his provisions. Mr Juda’s company did not seek other competitive tenders due to his previous close working relationship with Mr Berdie and were advised that Mr Berdie and the applicant were more than capable of submitting an accurate cost in to complete the works due to his stated expertise and past experience and knowledge of the site. Mr Berdie had conducted and supervised testings on the site on a number of prior occasions between 22 October 2003 and February 2006.
35. Mr Juda stated that Mr Berdie had previously conducted expert reports concerning the property and had informed Mr Juda’s company that he had first hand knowledge of the steep terrain and thick undergrowth, and difficulty with the site generally. Mr Berdie conveyed that he was very comfortable with his knowledge of the property and the adequacy of his costing and that the company could rely upon his costing. Mr Juda stated that he relied on Mr Berdie’s representations in this regard.
36. The work that was to be done related to approximately 134 tested holes to be excavated by the applicant and work started towards the end of March 2008. The applicant had originally quoted 60 hours to do the test pitting plus another 50 hours to clear the site to get to the holes. Additional excavation hours were required to get to the holes.
37. The invoices from 2 – 16 April 2008 indicate that the W S Group surveyors used the excavators to clear internal roads for subdivision and the applicant was not on site during that period.
38. The respondent took issue with the total number of hours billed. The applicant referred to the fees schedule and not to the lump sum contract. He says he didn’t charge for work that was not done. There had been prior correspondence between the companies referring to a reduction in the test pit holes from 250 to 130 prior to the contract of 17 December 2007. The location of the holes was known to the applicant, and Mr Tucker, on behalf of the respondent, submitted that the applicant knew where the holes were and where they had access to do the test pitting. The applicant said that the allowance for clearance of access to pit holes did not allow for clearance for road purposes.
39. Mr Amaral gave evidence, he confirmed the contents of his statement dated 28 April 2010 and confirmed that a 30 tonne excavator would work better on flat ground as the relevant site was steep and tree covered, a smaller excavator was preferable. Mr Amaral commented it was not possible to work from existing tracks with respect to excavations. Mr Amaral in cross examination by Mr Tucker stated that the applicant’s work was appropriately done, he said he had visited the site in August 2007 and 134 pits in 163 hours being an average 1 hour 13 minutes per pit seemed a reasonable estimate.
40. Mr Eric White gave evidence, he referred to a statement that he had given on 28 April 2010, he referred to the appropriate machine being used to excavate and stated that a 20 tonne machine was more suitable and quicker. Mr White stated that his role was to oversee work on site.
41. Mr Bill Rennard gave evidence, he referred to a statement of 2 June 2010. Mr Renard stated that he had trust in the opinion of the applicant, and surveyors working with the applicant to ascertain where the test holes should be. Mr Rennard said that he was not aware of any variations to the quote, such as an increase in the number of hours of work or number of test pit holes. This would mean a fresh contract if significant variations were to occur and written confirmation was required. Mr Rennard said that he was never consulted with respect to any major variations to the contract.
42. Mr Juda gave further evidence to the effect that any variations over $5000 to the contract would need to go back to the company’s board for approval, that be in writing. He confirmed that Mr Berdie’s expertise was in clearing site levelling and testing. Mr Juda stated that the surveyors, W S Group were at the beck and call of the applicant who had the run of the site. He said that the applicant knew the site and conducted test fitting on the site previously. Mr Juda stated that he never approved any variation in relation to the operating time or the engineer and excavation costs.
43. Mr Juda referred to his statement and stated that in his opinion Mr Berdie and the applicant had underestimated the time based costing, and when queried about this Mr Berdie provided no explanation. There was no evidence according to Mr Juda that the W S Group used the excavators or verbally agreed major variations other than the minor variations which were previously approved.
44. Mr Juda stated that he and the respondent paid Mr Berdie a sum of $70,717.00 including GST which included generous allowances for suggested unforseen circumstances of 19-20% for machine and engineer hours plus the minor approved variations. Mr Juda said that it was not his recommendation, but that the respondent decided to pay a further amount of around $10,000 but only on the basis to settle the matter to maintain goodwill, as the respondent hoped to continue to utilise Mr Berdie and the applicant’s services. Mr Juda commented that the applicant was not entitled to $70,717.00 on the contract, which was above the entitlement.
45. Mr Tim McBride, a director of W S Group Surveyors provided a letter to the Tribunal which stated that the only reason that clearing was being undertaken on site was to gain access to geotechnical test pits. Mr McBride stated that there was a survey crew onsite for the majority of time that the machine was on site to guide the operator to follow the correct route and achieve access to the test pits. As the surveyors progressed they stated the position of each test pit. The surveyors did not need to undertake any other surveys for any other purpose and there was no need for the operator to undertaken any clearing for the surveyors purposes.
46. There were 2 W S Group staff who signed some of the dockets to confirm that the machine was operating on site for the hours stated.
47. Mr Juda stated that his company never agreed to pay all the engineers field time cost variations. There was an allowance of 19% increase on the quoted amount for unforseen items. The applicant gave no reason or basis for its increased charged hours other than it previously claimed that its contracted rate for engineers’ field work at 180 per hour plus GST was under costed and should have been to the order of $250.00 per hour. The contracted amount for field work was 110 hours at $180 plus GST or $19,800.00 plus GST ($21,780.00 including GST). To allow for unforseen increases Mr Juda’s company allowed an increase of $4,138.20 including GST giving a total paid by respondent regarding engineer field work of $25,918.20 including GST. Against this the applicant claimed a total of $163.25 hours at $180 plus GST or $32,323.50.
48. Mr Juda stated that the total claim by the applicant of $96,723.00 including GST should be reduced to $76,590.00 which is less than the amount paid in total by the respondent of $80,870.00, which did not include a further payment of $2,982.00 to Carauna by the respondent for machine hire to stabilise the works so as to leave the site in a safe condition.
49. Mr Juda stated that his advice to the respondent was to pay the applicant’s total variations of $9,935.00 GST inclusive, the contract of $57,898.50 GST inclusive, it $2,751.38 and administration fee of $82.50 giving a total of $70,667.38 which was the maximum amount that should be paid under the contract on the basis that the respondent was being more than fair. Mr Juda continued that the applicant has paid $80,820.00 and should refund the difference of $10,152.00.
50. Mr Berdie gave evidence that stated there was 3 additional holes required under the community centre and reservoir site. This was a variation which was agreed to on 27 March and sometime in May. He said that the reservoir hole took an extra day of time and that there was some roads available for the excavator but others needed clearing. He says that the clearing of an extra 98 hours between 3 and 16 April was for road clearing and not just for track clearing.
51. In cross examination by Mr Tuckerman Mr Berdie stated the documents for clearing by the excavation company Carauna were signed off by the W S Group of surveyors.
52. In submissions by Mr Berdie he stated that the contract wasn’t a fixed price contract but the W S Group was separately engaged to carry out separate distinct work and that allegations that all roads had to be cleared to reach the hole site is untrue.
53. Mr Tuckerman in submissions on behalf of the respondent referred to the estimation of time by Mr Amaral of 163 machine hours. In an invoice from the applicant the excavation hire was for 134.5 hours being test pitting contract time of 60 hours plus access preparation of 50 hours. The total time billed was 125.25 hours as opposed to the estimated contract time of 110 hours.
54. The invoice time stated 163.25 hours and the contract sum agreed to in the contract was $60,071.00 the amount invoiced by Dr Berdie’s company (the applicant) was $96,723.00.
55. Mr Tuckerman submitted that at no point did the respondent or W S Surveying Group admit any variation to the contract. That there was no explanation for the alleged variation and that the allegation of verbal alteration of the contract is contrived. Mr Tuckerman submitted that the applicant underestimated the work to be done or overcharged the amount of work that was done and there was no basis to go outside the contract. He stated that the amount paid was not done on a contractual basis and that the amount of approximately $80,000.00 that was paid was endeavoured to seek a final resolution of the matter.
56. Mr Berdie stated that he had worked in the past with the respondent and had not worked on a fixed time basis in the past but only had charged for the work that he and or his company, the applicant, had done.
57. The Tribunal finds that the respondent entered into the contract with the applicant to have the applicant perform work for them in relation to the subdivision at Cannonvale that it was a fixed term contract with the clear amount of time costing for work that the applicant was to perform that there was little or no variation incorporated in the contract and that any variations were to be agreed to by the respondent and or Mr Juda’s company.
58. The Tribunal finds that not withstanding the applicant’s previous work on the site and Mr Berdie’s stated expertise in relation to geotechnical services that the applicant miscalculated the degree of work that was needed and the amount of time it would be required to conduct the excavation and test pit hole drilling.
59. The Tribunal further finds that the amount of monies paid by the respondent to the applicant was in excess of the amount required pursuant to the contract and that the applicant can not claim the amount invoiced by it for the work that was done having regard to the miscalculation above referred to.
60. In all the circumstances the Tribunal finds that the respondent has overpaid the applicant for work done pursuant to the contract and that the applicant owes an amount to the respondent which the respondent has calculated at $10,152.00.
61. The order of the Tribunal will be that the applicant pay the respondent the sum of $10,152.00 within 30 days and that there be no order as to costs.
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