Lindsay Consulting Pty Ltd v. Primary Developments Pty Ltd & Ors
[2008] QDC 281
•28 November 2008
DISTRICT COURT OF QUEENSLAND
CITATION: | Lindsay Consulting Pty Ltd v Primary Developments Pty Ltd & Ors [2008] QDC 281 |
PARTIES: | LINDSAY CONSULTING PTY LTD (ACN 079 744 808) (Plaintiff) AND GREENE DEVELOPMENTS PTY LTD (ACN 105 233 903) AND PRIMARY DEVELOPMENTS PTY LTD (ACN 117 787 023) AND SCHOOL DEVELOPMENTS PTY LTD (ACN 117 786 811) (Defendants) |
FILE NOS: | 71/07 |
DIVISION: | District Court of Queensland, Maroochydore |
PROCEEDING: | Civil hearing |
ORIGINATING COURT: | Maroochydore District Court |
DELIVERED ON: | 28.11.2008 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 29.10.2008 & 6.11.2008 |
JUDGE: | Judge J.M. Robertson |
ORDER: | 1. Judgment given for the plaintiff against the defendants in the sum of $109,450 together with interest of $22,426.75 (calculated at 9% from 21.8.06 to 28.11.08) and daily thereafter at $37.93 per day until the judgment is satisfied (calculated by reference to Practice Direction No 4 of 2000). 2. The defendants will pay the plaintiffs costs of and incidental to the claim assessed on the standard basis or as agreed. |
CATCHWORDS: | CONTRACT oral contract to provide professional services; terms of contract; whether plans delivered were complete; whether defendants got what they bargained for. |
COUNSEL: | Mr. Lindsay for the Plaintiff (self- represented) |
SOLICITORS: | All parties were self-represented. |
The Plaintiff company (Lindsay) operates an engineering firm. Its principal is Mr. Jason Lindsay. In 2005-2006 the company was engaged to prepare hydraulic, structural and civil works together with a geotechnical report for a development planned by the defendants for a site at Primary School Court Maroochydore. The three defendants had formed a partnership to undertake the development known as the Eclipse Partnership. Lindsay claims its fees for this work. The defendants dispute the terms of the original engagement and say that, in any event, the drawings provided were incomplete for the purpose for which they were required.
The hearing proceeded over two separate hearing days. On the first day Mr. Lindsay represented his company and Mr. Simon Mullins, the sole director of the second defendant, appeared on its behalf. There was no appearance for the first or third defendants. Mr. Mullins applied for an adjournment on a number of grounds which Mr. Lindsay strongly opposed. I refused the adjournment application and the trial proceeded. On the second day, as well as Mr. Lindsay and Mr. Mullins, Mr. Andrew Davis appeared for the first defendant. Before dealing with the disputed issues I should set out the background of the listing of the matter for trial and more detailed reasons for refusing the adjournment application.
The claim was filed on 3.4.07. The plaintiff was then represented by a local firm of solicitors. The first defendant filed a defence on the 8.5.07. Mr. Davies confirmed that the Defence had been prepared by lawyers which is obvious.
Neither the first or third defendants have ever filed a defence however it is clear that the defence of the first defendant addresses issues common to all defendants. No application was made for judgment in default of appearance against these defendants.
On 18.7.2007, Mr. Lindsays solicitor filed an application seeking further and better particulars of the defence and disclosure.
On 3.8.07, Welsh and Welsh filed a notice of appointment of their firm as solicitors for all three defendants and a consent order signed by all parties consenting to the orders sought by the plaintiff in its application filed 18.7.07.
A consent order was made by Judge Tutt on that day and the defendants were ordered to pay the plaintiffs costs.
In accordance with his Honour’s order, further and better particulars were filed on the 29.8.07.
An amended Statement of Claim was filed on 25.1.08; the only amendment being to the heading naming the defendant corporations as trustees of various trusts.
On 26.8.08, Mr. Lindsay’s solicitor filed a notice that the plaintiff was acting in person. The day before a request for trial date was filed in the usual form.
The matter was listed for a one day trial on the 29.10.08. The file records indicate that a notice of hearing was faxed to Welsh and Welsh successfully at 10:44am on 7.10.08.
On 9.10.08 the Court received from Welsh and Welsh Notices that all defendants were acting in person. These notices were filed that day. It appears that each notice is signed personally, presumably by Messrs. Davies, Mullins and Smallwood.
It follows that at the time these notices were filed all defendants had notice of the trial date.
The adjournment application
On the morning of the 29.10.08, Mr. Mullins applied for an adjournment. He told me what he had only become aware of the hearing date “on Monday last week”. He then said that he had spoken to his solicitor on the “Monday just passed”. I clarified this with him later and he confirmed that he meant Monday 20th October. He alleged that was the first that he knew of the trial date. He asserted that the last time he spoke to Messrs. Davies and Smallwood was on the 8th October when I infer they all signed the self acting notices filed on 9th October. He asserted that they were not aware of the trial date.
He further asserted that he had only received “paperwork” from his solicitor Mr. Bateson of Welsh & Welsh “yesterday” and that he needed to call two witnesses who were not available. One was Mr. Peck, an engineer who had reviewed Mr. Lindsay’s plans at the time and given a report, and the other was the architect for the project Mr. Stonely, upon whose plans Mr. Lindsay based his drawings.
He told me he had been unable to contact either of these men.
He told me that his fellow defendants were “very keen to vigorously defend” the claim but that he had not been able to contact either (presumably since 8th October) because “one’s away on holidays and one’s away working”.
Mr. Lindsay opposed an adjournment. He submitted that the application was another in a long line of delaying tactics. He was ready to proceed and had two professional witnesses available to give evidence in his case. I refused the adjournment and the hearing proceeded.
The matter was not completed in one day. It was adjourned for a further day – the 6.11.08, and Mr. Davies appeared on that date. Mr. Stonely was still unavailable on that date. Mr. Peck was no longer working for the original engineering firm that had provided a report to the defendants in September 2006, however the defendants had engaged an engineer from that firm to review the plans and the report and he was available to give evidence.
The issues
The trial suffered from the usual problems associated with self represented litigants, however at no time did any of the participants resort to active discourtesy and all tried to comply with my many directions to focus on the relevant issues. I endeavoured to focus the parties on the real issues in the dispute as identified in the pleadings and the further and better particulars.
At an early stage, and constantly throughout the hearing, Mr. Mullins asserted that the partners had suffered extensive loss and damage because of Mr. Lindsay’s failure to provide usable plans. He told me early in the hearing that his solicitor had obtained an advice early on from a barrister to the effect that the defendants had grounds for a counter-claim “but at this stage, we haven’t gone down that road yet”. I endeavoured to explain to him that the only relevance of evidence about the state of the plans to an issue in dispute on the pleadings was to the defendant’s claim that (in effect) they did not get what they bargained for. With that in mind, I tried to give as much latitude to the parties as I could consistent with fairness. At the outset of his case, Mr. Lindsay indicated that he had another engineer available to give evidence about the plans but that he did not have a report and notice had not been given to the other side. He told me that he would express his own opinion about the completeness of the plans, and that the witness would back him up. Out of fairness to the defendants, I would not let Mr. Lindsay call this witness.
The issues at the hearing
The pleadings disclose two principal issues:
What were the terms of the original oral agreement between the parties on the 8.11.05, and to what extent and in what terms was the original agreement varied over the following approximately 8 months.
2. Were the plans submitted to the defendants in August 2006 complete?
Issues Discussed
1. The contractual terms
In October 2005, the defendants (as the Eclipse Partnership) asked Mr. Lindsay to quote for the preparation of hydraulic design and civil works for the development and to obtain a geotechnical report, based on information and drawings provided by Mr. Stonely who was the architect for the project. Mr. Lindsay provided a quote to Mr. Davies on 13.10.05.
On the 8.11.05 Mr. Lindsay met with Mr. Mullins and Mr. Davies and it is common ground that an oral agreement was made whereby Lindsay would provide engineering drawings for the construction based on Mr. Stonely’s drawings and in accordance with the quotation, by Christmas 2005.
Mr. Searle, a consultant hydraulics engineer, and his son were present at the meeting, as was Mr. Stonely.
Mr. Lindsay gave evidence that this agreement was that his company would be paid a 10% deposit, a 20% progress payment after two weeks and the balance on delivery of the drawings. Mr. Mullins disputes this. He says that Mr. Lindsay agreed that the partnership would only pay him fees upon the completion of plans suitable to obtain a fixed price fixed term contract with a builder. He says that it was made clear to Mr. Lindsay that this was a condition precedent imposed by the project financier. Mr. Davies also gave evidence about this meeting although he was very vague about details. Contrary to the specific admission in his defence that an oral agreement with Lindsay was reached that day, he thought that nothing was finalised on that day. He did think that it was made clear to Mr. Lindsay that his fees could only be paid when the project financier’s conditions had been met.
I prefer Mr. Lindsay’s evidence on this important issue. His recollection is supported by Mr. Searle who was an impressive witness. He recalls that the agreement was in the terms described by Mr. Lindsay and he was positive that there was no mention of any bank of financier conditions.
In cross examination of Mr. Mullins, Mr. Lindsay raised with him a document which is Exhibit 24. In part compliance with the orders made by Judge Tutt, the first defendant’s solicitor Mr. Bateson provided copies of various documents under cover of a letter dated 28.8.07 to Mr. Lindsay’s solicitor. Included in the bundle of documents was a letter dated 11 January 2006 from the project financier setting out its offer to fund the project together with “conditions precedent”. I think it is unlikely therefore that these conditions would have been discussed with Mr. Lindsay on 8th November 2005.
I also think it is highly improbable that Mr. Lindsay and Mr. Searle would be prepared to do all their work (at that stage in approximately 6 weeks) without any progress payment at all.
The evidence of both Mr. Mullins and Mr. Davies is not consistent with the further and better particulars supplied by the first defendants solicitor and filed 29.8.07, and its defence. In its defence filed 8.5.07, the first defendant admits paragraphs 13(1)(2) and (4) of the Statement of Claim, and must therefore be taken to have admitted that an agreement was reached on 8.11.05. Messrs. Mullins and Davies said as much in their evidence. However, when asked for particulars of paragraph 3 of the Defence which denied paragraph 13(3) of the Statement of Claim the first defendant responded:
“1. In relation to paragraph 1 (a) of the Application, the First Defendant says:
(a)On or about 4 July 2006, Andrew Davies, a Director of the First Defendant, met Jason Lindsay of the Plaintiff.
(b)Jason Lindsay informed Andrew Davies that he required to be paid a deposit before commencing to produce engineering drawings of the Eclipse Apartments.
(c)Andrew Davies informed Jason Lindsay that the financier would pay the costs of producing the engineering plains upon a building contract being entered into for the construction of the Eclipse Apartments.
(d)At that time, Jason Lindsay agreed to the payment being made to him by the financier upon the satisfactory completion of the said engineering plans.”
I am satisfied that both Mr. Mullins and Mr. Davies have largely reconstructed their evidence as to what was agreed on 8th November, and have projected into that meeting discussions that took place in July the following year to which I will return later in these reasons.
The first defendant admits in its defence that on or about the 21st November 2005, Lindsay rendered Invoice No. 9977 to the partnership which represented the 10% deposit and 20% progress payment which was $26,730. This admission lends further support to the plaintiff’s version of the terms of the original agreement. It makes no sense for Lindsay to render such a specific invoice if the agreement was in the terms contended for by Mr. Mullins and Mr. Davies.
Mr. Lindsay continued work on his plans and Mr. Searles on the hydraulic drawings. As Mr. Searles said in evidence, his company pulled out all stops to produce the drawings by Christmas 2005.
The first defendant, in its defence, admits that
“On or about 15 December 2005:
(1)the Plaintiff, via Jason Lindsay, made further oral demand to the partnership, via Andrew Davies, for the payment of Invoice 9977 by the partnership ; and;
(2)the Plaintiff, via Jason Lindsay, and the partnership, via Andrew Davies, orally agreed to vary the contract such that the Plaintiff would not conduct any further works at that stage under the contract (“the stop work variation”).”
It is common ground that on or about 6 March 2006, Mr. Davies contacted Mr. Lindsay and it was agreed that Lindsay would recommence work on the engineering drawings. I accept Mr. Lindsay’s evidence that the partnership then agreed that any invoices rendered by the plaintiff would be sent to the partnership and directed by it to its bank for payment, and Invoice 9977 was resent accordingly. I accept his evidence that there were a number of meetings over the next few months which involved him, Messrs Davies and Mullins and Stonely and a builder. I accept that he engaged Golders & Associates to prepare a geotechnical report for which he paid. Mr. Lindsay continued to work on the drawings and I accept his evidence that by early July 2006 he had completed 70-80% of the work. I accept his evidence that neither Mr. Davies nor anyone from the partnership had at this stage raised with him any connection between the payment of his fees (and Mr. Searles’ fees for which Mr. Lindsay was responsible) and the satisfaction of any conditions agreed between the partnership and its Bank.
I am satisfied there was a meeting between Mr. Lindsay and Mr. Davies on behalf of the partnership in early July 2006. I accept Mr. Lindsay’s evidence that, in contravention of the original contract, Mr. Davies then informed him that he would not be paid until a building contract was signed.
I am satisfied that there were changes to the proposal which required amendment of Lindsay’s drawings and Mr. Searle’s drawings. A number of e-mails tendered refer to design changes even after Lindsay submitted its initial plans in early August. Mr. Lindsay says that this formed part of the variation to the original contract in terms of paragraph 18(3)(a) of the Statement of Claim:
“(a) the plaintiff would:
(i)make changes to the engineering drawings to reflect changes to the plans for the construction concerning the layout and number of units to be encompassed in the construction;
(ii)complete the engineering drawings to tender stage so that a building contract could be signed; and
(iii)retain possession of the completed engineering drawings until final payment was made to the Plaintiff; and …”
I am unable to say what the changes were in the absence of evidence. Messrs. Mullins and Davies say that there were no additional units, although I was not shown the original development approval or the final plans approved as part of the building approval. Mr. Lindsay had these documents, apparently obtained by third party disclosure from the Council, but they are not in evidence. Mr. Searles says he was required to make changes to his hydraulic plans but he thought this occurred in March.
I have already referred to the particulars filed by the First Defendant on 29.8.07 and I have reproduced above paragraph 1 of those particulars which related to paragraphs 3 and 7 of the Defence. I have noted that the particulars simply do not accord with the admissions made in Paragraph 1 of the Defence. By July 2006, Mr. Lindsay had completed much of his work. As accepted by the first defendant, he had submitted Invoice 9977 back in November 2005. It would therefore make no sense for him to request in July 2006 that he “be paid a deposit before commencing to produce engineering drawings” as particularised.
I accept Mr. Lindsay’s evidence that it was at this meeting for the first time that Mr. Davies linked payment of his fees to the signing of a building contract as being a requirement of the bank. Mr. Lindsay told me in his evidence that he felt as though he could not back out at such a late stage as by then he had an invoice from Mr. Searles for around $30,000, and the geotechnical invoice for $4500 and he had completed much of his work. That is why he agreed to the variation pleaded in paragraph 18(3)(a) of the Statement of Claim. I accept his evidence on this point, and reject the evidence or Mr.Mullins and Mr. Davies that it was a term of the partnership’s agreement with Lindsay that he would not be paid until a building contract was signed as required by their bank.
Were the plans delivered completed
Paragraphs 19-21 of the Statement of Claim are in these terms:
“19. On or about 21 August 2006 the engineering drawings were completed to tender stage in accordance with the 7 July 2006 variation.
20.On or about 21 August 2006 the Plaintiff sent Invoice 1192 to the partnership demanding payment for the sum owing pursuant to the contract, namely $109,450.00 (ONE HUNDRED AND NINE THOUSAND, FOUR HUNDRED AND FIFTY DOLLARS), in pursuance of it having completed the engineering drawings.
21.On or about 23 August 200s the completed engineering drawings were emailed to [email protected], the architect Gemma Chapman and a builder [email protected]. “
The first defendant accepts (as does Mr. Mullins) that plans were delivered however they contend that the plans were not complete.
The defence in paragraph 17 is in these terms:
“The First Defendant denies the allegation in paragraph 21 of the Statement of Claim because although the engineering drawings were provided to an architect and builder, the engineering drawings were incomplete.”
In its further and better particulars the first defendant particularised paragraph 17 as follows:
“6. In relation to paragraph 1(d) of the Application, the First Defendant says:
(a) That the drawings be the Plaintiff were unable to meet Conditions Precedent No. 1 of Investec Bank (Australia) Ltd because no building contractor was able to quote on a fixed price, fixed time contract based on the engineering drawings provided by the Plaintiff.
(b) The First Defendant sought an independent review of the said plans by a member of the Board of Professional Engineers of Queensland.
(c) The independent review was carried out by Qantec McWilliam, Consulting Engineers.
(d) On 7 September 2006, Qantec McWilliam, Consulting Engineers, provided a report in relation to the review of the drawings of the Plaintiff.
(e) The above report indicated the following matters which were not complete:
Roof framing dwg 6 and detail sheet 16
· Wind classification not noted but assumed as N3 is common.
· Architectural drawings show post and beam supports to roof over walkways. This Is not described on the structural drawings.
Level 1, 2, 3 floor slab dwgs 11,12, 13, 13, 15, 18, 19
·Walls supporting level 2 units adjacent the car ramp are not shown on drawings 11. We assume that the walls extend two storeys from the footings shown on drawings 5 (ground level). These walls have inadequate capacity at this height.
·Beams to the first floor level are not detailed. We assume they are meant to be the same as the ground floor. A more accurate investigation of column locations to the first floor to the isolated unit block (Section D on dwg 12) could confirm adequacy of this area when the beam details are know. No details are given for the roof of the storage area outside of the basement attached to this block.
·The reinforcement to the area over the ramp in inadequate.
General
·The plans are drawn at 1:150 which is very unusual for structural drawings and different from the architectural plans. Even though scale legends are shown, you have to be careful not to scale the drawings.
·There is little structural detail on the drawings and this will make construction difficult and the costing by a contractor will be incomplete allowing room for extras during construction.”
The Qantec McWilliam report referred to in the particulars was in fact a letter dated 7.9.06 sent to Mr. Davies by Mr. Croucher a director of that firm. A copy of the letter with a copy of Lindsays plans to which it refers is Exhibit 20.
According to Mr. Mullins and Mr. Davies, this firm later (in effect) took over the engineering work and prepared new plans leading up to the signing of a building contract on 9.10.06.
I was told that Mr. Croucher is deceased. The engineer who is said to have prepared new drawings for the project and who was the person behind the 7th September letter, Mr. Peck, is no longer with Qantec McWilliam but is apparently working in Brisbane. By the time of the resumed hearing, the Defendant’s did not apparently wish to call Mr. Peck but had arranged for Mr. Pascoe from Qantec McWilliam the night before (i.e. the 5th November) to review the letter and the plans.
Mr. Pascoe gave evidence that the deficiencies set out in the letter accorded with his assessment of the plans attached to the letter which had been supplied to him by the defendants. In his opinion, the plans were 50-60% complete. The difficulty for the defendants case became immediately apparent when Mr. Pascoe was asked to look at Exhibit 3 over the lunch hour. Exhibit 3 was tendered by Mr. Lindsay without challenge as being the set of plans which he thought someone form the partnership had collected and which were also delivered at the time of his final bill, namely the 21.8.06. After Mr. Pascoe reviewed the plans in Exhibit 3, he completely revised his opinion, saying that the plans were completed 90% plus and suitable for tender. The defendants did not rectify this in any further evidence, and it remains for me to consider the submission made very late in the day by Mr. Mullins, that Exhibit 3 was not the set of plans delivered to the partnership and upon which Qantec McWilliam based its 7th September report. That proposition was certainly not put to Mr. Lindsay when Mr. Mullins was cross-examining him on the first day.
Again the evidence bearing on this issue, apart from Mr. Lindsay’s evidence, is quite sparse. There are many unanswered questions and it remains for me to resolve the matter on the evidence before me bearing in mind that Lindsay has the onus of proving that the plans were complete in the sense that the defendants got what they bargained for as a result of the oral contract.
It is clear from the various e-mails tendered in evidence that Mr. Mullins and Mr. Davies were pushing Mr. Lindsay to produce the final drawings. On the 7.8.06 at 6:19am Mr. Lindsay forwarded to the partnership a set of civil drawings. Only the e-mail was tendered and not a copy of the attachment. Mr. Mullins acknowledged receipt of the drawings at 9:15am that day but complained that he hadn’t:
“…got the engineering and hydraulics. Can you advise me when they will come through so I can lodge the op works. Also can you please tell me who you have sent the civils to so I can get them out to the consultants if you haven’t already sent them”.
At 5:47am on the 8th August Mr. Lindsay replied in these terms:
“the drawings I sent are the operational works drawings in pdf form.
I’ve emailed Lorenzo about the other bits (hydraulics and structural). I don’t understand why he couldn’t open the files. I asked him to explain the problem to me.”At 7:59am Mr. Mullins responded:
“…can you forward the hydraulics and structural to David so that he can complete his drawings and can you cc me in on the emails to Sunstruct and any other consultants so that we can stay in the loop.”
The next e-mail (chronologically) in evidence is a group e-mail sent by Mr. Mullins to a number of people including Mr. Davies, Mr. Lindsay and Mr. Stonely on 11.8.2006 in these terms:
“Good Afternoon, just a quick note to confirm that a design meeting for Eclipse Apartments is scheduled for 12 noon on Monday. The meeting is to occur at Jason Lindsay’s office in Maroochydore.”
As I understand the case for the defendants, the only hold up at this point was said to be the receipt of the engineering drawings. Given that it is admitted that those drawings were to be based on the architect’s plans, it is surprising that at this stage design meetings were still being held.
I am satisfied that changes were still being made leading up to the 21st August necessitating amendment to the engineering plans. On 17.8.06 at 7:40pm Mr. Mullins sent an e-mail to Mr. Lindsay in these terms:
“Hi Jason, just an update as a result of today’s design meeting in Brisbane. I spoke to David Stoneley and he asked that you complete the car par engineering changes and he will detail the changes to the car park design and lay out thus reducing the workload on you. As I recall the car park design was left with you deleting two columns and changing the orientation of the remaining columns in question to run east west. Also if you can reduce the void areas on your drawing for the floors above so that the columns line up and give adequate support.
David has stated that he will have his plans completed within this time frame and based on all of this occurring we will be in a position to enter into a building contract. As I understand from our conversation this morning you will have all the remaining detail and structural drawings completed by this coming Monday morning. Based on this I have scheduled meetings with the form work, steel and concrete contractors on Monday at 12 noon as these are the final cost centres that need firming up before we can go to contract with a builder. If you need to contact David to coordinate the changes I have listed his contact detail below.
I take this time to thank you for your efforts to date if you require any further information please contact me on 0417006909.
Regards
Simon”It clearly suggests that the plans were still in a state of flux, and it does not suggest unhappiness with Mr. Lindsay’s work at that time.
The next set of e-mails in evidence is Exhibit 6. One of the e-mails in this batch is one from Mr. Lindsay to the partnership and a copy to a builder at 9:15am on 23.8.06. Although Mr. Lindsay did not mention this, I infer that this is the e-mail referred to in paragraph 21 of the Statement of Claim. It does suggest that the plans (Exhibit 3) delivered on 21.8.06 may not have been complete. Mr. Lindsay was not cross-examined about this at all. It may explain why Mr. Pascoe thinks they are 90% complete but again he was not queried about this and no attempt was made by the defendants to produce the drawings attached to that e-mail to compare them with Exhibit 3.
On the 28.8.06 at 11:24am the first defendant sent an e-mail to Mr. Lindsay and Mr. Stonely attaching what I assume is a copy of a message from an estimator received at 10:18am. The e-mail refers to a number of alleged defects in the plans in relation to reinforcement. Mr. Lindsay responded to Mr. Davies the next day at 8:59am and gave a detailed response to the estimators questions. Again, he was not questioned about this nor was Mr. Pascoe asked to comment on these queries with respect to the report prepared later on the 7th September. The estimator was not called to give evidence.
An e-mail to the first defendant from a “Steve Rogers” was forwarded to Mr. Lindsay on the 5.9.2006. There is no evidence of Mr. Lindsay’s response. Over the next few days, there was an exchange of e-mails between the partnership and Mr. Lindsay concerning problems about printing out the plans and whether they were to scale.
I infer that at this stage the partnership had engaged Qantec McWIlliam to review Mr. Lindsay’s “plans”.
On 8.9.06 an e-mail from “Lloyd Carey” was forwarded to Mr. Lindsay. Lloyd Casey was not called as a witness. Mr. Lindsay responded (indignantly) to the criticisms in the e-mail to the effect that “the structural drawings are the worst I have seen in years”. In that response (sent 11.9.06 at 5:58 a.m.) he says (in part):
“ Firstly is he printing the drawings at A0 scale. I would like this answered as both you and me know the drawings are not at A1 size. If he is printing the drawings at the wrong scale I would Like a written apology for the comments which I find totally inappropriate
Secondly if he wishes extra detailed or thinks things are “missing” list them and I will address it. At this time I’ve seen no list of these “errors” only ranting.
I’m happy to add other details but I’n my 21 years of experience I am satisfied that the drawings may be quoted from.”Mr. Mullins claims that he sent an e-mail to Mr. Lindsay at 8:35p.m. on 11.9.06 which Mr. Lindsay claims he did not receive until he first received a copy of the Qantec McWilliam report (dated 7.9.06) on 27.9.06.
One of the difficulties for me is that I am sure that only a portion of the emails exchanged between the parties are in evidence, and when they are the party tendering them has stapled a number of hard copies together in one exhibit. No-one attempted to set out a chronology for me so I have to do my best to determine what occurred on the basis of the evidence placed before me.
This particular “set” of e-mails is contained in Exhibit 10. This in turn purports to show in chronological order an exchange of e-mails leading up to the delivery to Mr. Lindsay of a copy of the Qantec McWilliam report which he says he first saw on 27.9.06.
I infer that Qantec McWilliam had been engaged to “take over” the engineering work – probably in early September after the partnership had received their 7 September report. This is the context in which Mr. Mullins sent Mr. Lindsay a lengthy e-mail on 11.9.06 which Mr. Lindsay says he did not get until 27 September.
As part of Exhibit 10, there is a copy of an e-mail from Mr. Lindsay to Mr. Davies which is in these terms:
“Andrew
I am extremely disappointed in the attitude of Simon who is continually badgering both me and cliffy (the hydraulics consultant) regarding the drawings.
As you are well aware we have not been paid as per the agreement and the drawings are at tender stage only. The fact that the builder can’t read the drawings
Does not mean that the information is not there. The drawings as opposed to the schematics have all the information required to quote.
Simon ringing and ripping into cliff and continuously ringing our natilie is only upsetting me who is getting it from natilie.
Any builder worth his salt could quote with minimal pc items for a project like this.
Sorry if this songs a little harsh but I have been owed money since November and it is dragging on.
Jason”For reasons that I cannot ascertain, there is nothing on that message to suggest when it was sent. I comfortably infer that it was sent after Mr. Lindsay’s email to “Simon” at 5:58 a.m. on 11.9.06 which is part of Exhibit 17 and Exhibit 10!
The lengthy e-mail from Mr. Mullins to Mr. Lindsay seems to be a response.
In that e-mail Mr. Mullins informs Mr. Lindsay that:
“We have also given your drawings to another engineering firm for the purpose of providing a cross check which I believe is commonly done with projects of this size. Attached is a copy of there findings in relation to the drawings and after reading this report it appears that the concerns of the builders and there subcontractors are well founded.”
He certainly would have had a copy then of Qantec McWilliam’s report dated 7.9.06 however there is nothing in the header to the e-mail that suggests there was any attachment. This can be contrasted with the first e-mail in Exhibit 10 which is from Mr. Mullins to Mr. Lindsay on 27.9.06 at 10:22 a.m. This is the first time Mr. Lindsay says he received the three page report from Qantec McWilliam and this is supported by a reference to a 3 page JPG “ENG REPORT” file attached to that e-mail.
Mr. Lindsay had promptly responded to criticisms of his plans on earlier occasions. His responses were often quite indignant. In the last paragraph of that e-mail Mr. Mullins tells Mr. Lindsay (in effect) he should respond by the following day or else he will engage another firm. Given Mr. Lindsay’s past responses defending criticisms, it defies common sense that if he did receive the e-mail on 11.9.06, he would not have responded.
I accept his evidence that he did not receive the 11 September e-mail or a copy of the Qantec McWilliam report until 27 September. Given that the defendants by then would have engaged Qantec McWilliam to take over the engineering work, the horse had already bolted. I think it is highly unlikely that had he received the 11th September e-mail on that date, he would have sent the e-mail on 19th September to Mr. Davies (Exhibit 9 and 25) to this effect:
“Andrew
Just a quick email to see how things are going with the project. I’ve had one call from a steel supplier re the reinforcement so I take it that the builders are satisfied with what they’ve got.
Jason”It follows that by the time he had notice of alleged defects in these “plans” the defendants had already engaged other engineers. The defendants admit that a building contract was signed on 9.10.06.
I am satisfied that they had then determined not to pay Mr. Lindsay and I am comfortably satisfied that he did not receive the Qantec McWilliam report until 27.9.06 by which time he had no opportunity to respond to its criticisms.
Given this finding, the letter from Qantec McWilliam dated 10 October 2006 (Exhibit 26) does not reflect well on the credibility of Mr. Mullins and Mr. Davies. This letter is in these terms:
“Dear Sir
RE: PRIMARY SCHOOL COURT UNITS MAROOCHYDORE
We have been asked by the client to undertake a review of the Structural drawings prepared by your firm for this project. We understand you have been paid in full for your work to date.
We advise we have been commissioned to provide Structural Documentation for this project.Yours Faithfully,
GERALD CROUCHER
Director”On the evidence before me, namely the various e-mails, there are certainly suggestions that the defendants and others did not regard Mr. Lindsay’s plans as complete. The defendants did not seek to call any of the people who allege defects apart from an engineer from Qantec McWilliam who had nothing to do with the project at the time.
The only credible evidence therefore of what plans were delivered comes from Mr. Lindsay himself who says Exhibit 3 was the final set of plans delivered to the defendants in late August 2006. If, as Mr. Mullins lately implied, the defendants allege that Mr. Lindsay had at some stage (after August 2006) “upgraded” the plans he delivered to (for example) deal with the Qantec McWilliam criticisms of which he first had notice on 27.9.06, then that proposition should have been squarely put to him. The defendants have within their power and control access to documents which could have assisted their case in this regard e.g. actual copies of plans delivered, but chose not to do this.
I am therefore satisfied on the balance of probabilities that the “plans” upon which the Qantec McWilliam report is based (Exhibit 20) were not the set of plans finally delivered to and/or collected by the partnership on or about 21.8.06. It follows that Mr. Pascoe’s evidence should be assessed in that light.
As I have preferred Mr. Lindsay’s evidence as to the terms of the original agreement and its various changes, it follows that I am satisfied that it was always a term of the agreement that he prepare engineering drawings suitable for tender. I am satisfied that the defendants later introduced the concept of a fixed term fixed price contract which Mr. Lindsay did not accept and which was contrary to their actual oral agreement. I am satisfied that the defendants have reconstructed their evidence around this factor, which they introduced much later in the dealings with Mr. Lindsay at a time when he was already heavily committed both in terms of his own obligations to Mr. Searle’s company and to Golder & Associates, and his own unpaid fees.
There are two other matters that I should mention which I think reflect poorly on the defendants and in particular Mr. Mullins. Mr. Searles told me that after he prepared revised hydraulic plans in March 2006 (he thought) he was contacted by various plumbing contractors who were quoting for the work which was normal practice, and then, as he put it, “the matter just stopped”. He told me that in September or October 2006, Mr. Mullins phoned him at his office seeking to obtain a copy of his plans in CAD form if he (i.e. Mullins) paid for them. Mr. Searles refused on the basis that he had been engaged by Lindsay. Mr. Mullins denies he made this call but I do not believe him. As I noted, Mr. Searle was an impressive witness who didn’t appear to have any axe to grind. At that stage Mr. Lindsay had paid a significant part of his fee out of his own pocket.
The other factor which reflects poorly on the defendants is that both Mr. Mullins and Mr. Davies appear to accept that the Golder & Associates geotechnical report, for which I am satisfied Mr. Lindsay had paid, was used in the partnership application to Council for a building approval.
Both parties wished me to hear evidence about proposals made by each to settle the matter prior to the commencement of legal proceedings. Mr. Lindsay did not think these discussions were without prejudice, but the only document I have seen relevant to this topic is clearly marked “without prejudice”. This is the top e-mail in a bundle of e-mails contained in Exhibit 19. It refers to an e-mail from Mr. Lindsay but only a copy of the header to that document is attached to Exhibit 19. Despite both parties agreeing that I see this document, I did not use this document in any way in making the central assessment of credibility referred to above.
Mr. Pascoe was considerably constrained both by the extreme lateness of his engagement by the defendants to give expert evidence and by the fact that his opinion, and the original opinion of his firm, was not based on Exhibit 3.
For that reason, I prefer Mr. Lindsay’s evidence as to the state of completeness of the plans delivered on or about the 21st August.
Lindsay is therefore entitled to succeed completely on its claim. The third defendant chose not to file a defence or participate in the proceedings. It had notice of the hearing date.
I give judgment for the plaintiff against the defendants in the sum of $131,876.75 of which includes interest of $22,426.75 (calculated at 9% from 21.8.06 to 28.11.08) and daily thereafter at $37.93 per day until the judgment is satisfied (calculated by reference to Practice Direction No 4 of 2000).
The defendants will pay the plaintiffs costs of and incidental to the claim assessed on the standard basis or as agreed.
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