Orca Installations and Solar Solutions Pty Ltd v Tec Elec (Qld) Pty Ltd - [2014] QCAT 140

CITATION:

Orca Installations and Solar Solutions Pty Ltd
v Tec Elec (Qld) Pty Ltd [2014] QCAT 140

PARTIES:	Orca Installations and Solar Solutions Pty Ltd (Applicant)
v
Tec Elec (Qld) Pty Ltd (Respondent)

APPLICATION NUMBER:

MCDO2549-12

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

27 June 2013, 12 August 2013

HEARD AT:

Brisbane

DECISION OF:

Member Favell

DELIVERED ON:

11 April 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The application is dismissed.

CATCHWORDS:

Minor civil dispute – whether agreement for the value of work done as a variation – whether extent of work carried out – whether jurisdiction to make order sought in the minor civil dispute jurisdiction of the Tribunal.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Collin Twilley

RESPONDENT:

Craig Popplestone

REASONS FOR DECISION

The applicant was, at the relevant time, a subcontractor to Tec Elec (Qld) Pty Ltd in respect of work being done at the Mount Cootha lighting upgrade project in 2011.
Tec Elec contracted with the Brisbane City Council for that project and the applicant was a contractor. The applicant now makes a claim for the jurisdictional limit in QCAT’s minor civil dispute jurisdiction. The claim is for $25,000 said to be money owing to it in respect of the work performed in accord with a contract between the applicant and the respondent.
A response to the claim described the relationship between the applicant and the respondent as follows:
The respondent engaged the applicant to carry out works on a Mount Cootha site under purchase order PO6788274 to the value of $171,949.80 including GST. The respondent’s client for this project was Brisbane City Council. The respondent paid the applicant as per the purchase order plus variations that were approved by the client less retention which was held by the client. The respondent’s last payment made to the applicant was made on 31 October 2011 in full and final payment of invoice number 2751.
The purchase order spoken of is exhibit two. It simply states:
Civil works at Mt Cootha Lighting Project $140,338.00
Solar Lights and Poles, 4 x $3995.00 per unit, $15,980.00
Sub Total $156,318.00
GST $15,631.80
Total $171,949.80
The parties have been to an adjudication. The Tribunal was provided with that decision. That adjudication was concerned in part with the provisions of the Building and Construction Industry Payments Act 2004. It seems that a submission was made by the respondent that the adjudicator did not have jurisdiction to make a decision in accordance with section 26 of the Act in part because the payment claim was not served on the respondent and the payment claim is invalid because it had been more that twelve months since the construction work to which the payment claim related was last carried out. The adjudicator found that the payment claim in question was outside the time constraints contained in section 17(4) of that Act and therefore the application failed.
The applicant performed the work they were required to carry out and completed the project. They say that there were variations and changes of instructions during the project. They say that they submitted invoices for works and were paid except for the variations to the foundation cages and trenching of solid work that were incurred during the works.
Mr Popplestone who appeared as a general manager of the applicant told me that Tec Elec indicated that their customer was not going to pay the requested amount for variations. He said that they had submitted numerous costing worksheets to Mr Allan Brownlie and with some negotiation it was finally approved.
Exhibit one is an invoice from the applicant addressed to the respondent dated 31 May 2011. It contains the following:
Mount Cootha Light Project Sir Samuel Griffith Drive variations to cages as per engineer’s drawings and spreadsheet from Craig $14,580.
With GST the claim was for $15,969.80. Exhibit one includes a document called “Mount Cootha Foundation Variations” which sets out various zones in which various light poles of various designs were claimed for with the variations being set out along with additional depth required. The zones set out in the variation document attached to exhibit one are indicated in the drawings headed “Mount Cootha summit car park lighting” which is part of exhibit three. Those drawings also set out the general requirements and notes in respect of the project along with details if the lighting arrangements and seating.
Exhibit four is an email from Allan Brownlie and Collin Twilley. It is a request for the applicant to proceed with foundations as stated in an earlier email also appearing as part of exhibit four.
Exhibit five is a work order dated 6 June 2011. It is addressed to Orca Installations and Solar Solutions Pty Ltd and simply says “finish off solar lights Cole and Chris.”
Exhibit six is a document entitled “site management plan” and although it was addressed to the Redland City Council both parties informed me that they agree that the document formed part of the contractual agreement for the job.
In clause 2.5 of the document, variations are dealt with as follows:
Variations
a)     If a client requests a variation to the contract the construction manager will prepare a quotation through head office of the administration manager.
b)     Quotation shall be forwarded to the client for approval and acceptance.
c)     The client is to advise the construction manager in writing of this acceptance or via purchase order delivery.
Exhibit seven is a quotation dated 2 March 2011. It is entitled “Mount Cootha car park project variations”. The details in it are:
To supply and install
Modification to existing street light in zone B
Retrofit with solar 20w metal halide keeping heritage and pole to remain exactly the same
Ballast, lamp, battery with poly box under ground
Solar panel fed from new solar pole
Total $3795 plus GST
Exhibit eight is a variation notification dated 20 June 2011. On its face it is approved by the Brisbane City Council civic design. The description of the variation is “foundations to light poles”. In its body it contains the following:
Sandrine, please find attached spreadsheet variation for the extra depth to the pole foundations. Material changes: foundation depths. References/authorisation to proceed. Basis fixed price. This notice is issued in accordance with contract conditions MD110060-10/11.
Prior to that variation there had been emails passing between the representatives of the parties (exhibit nine). It seems from the content of those emails that there were discussions and conversations concerning possible variations.
In an email of 22 March between Mr Popplestone and Mr Brownlie I note that an item was stated as,
Standard footing a design for standard to average soil – rocky soil or rock requires substantial changes and the footings will be fluffed as a variation for rock drilling.
During the course of the hearing I was told by Mr Popplestone that the respondents had variations “B01, B02, B03 and BO4” which were submitted to the Brisbane City Council.
During the hearing I was told by Mr Popplestone:
There is no documented standard format that we’ve used between the applicant and the respondent for the variation. It would normally be resolved on site with the site personnel and representatives of Tec Elec and approval would be verbally given to continue work. This one we waited for a long time to the point where Mr Allan Brownlie gave us a written email to say go ahead with the arrangement, I’ll sort out the variation. If he was having problems with BCC we weren’t aware of that but we were running behind the work schedule as a result.
That general description seems to be supported by the emails I have referred to earlier.
I was told by Mr Stringer on behalf of the respondent that the work the subject of the foundation variation claim was carried out.
Exhibit ten is an invoice form the applicant dated 27 June 2011 relating to trenching as per addendum two materials and work schedule. It is in the sum of $65,439.10. when that exhibit was tendered I was told by Mr Popplestone,
What we have done – is our claim is fair in excess – so we’ve discounted it to $25,000 so we are able to come here without lawyers and add further costs to both sides, and have our claim settled. We could have asked for a lot more and it’s now 2013 and time keeps ticking on.
I was also told that the claim was being made in the minor civil dispute jurisdiction of QCAT on the basis that there was debt owned by the respondent to the applicant.
During the hearing I was told that the respondent paid what the council approved. The respondent paid, they say, including GST, $9,025.35 of the $14,000 claim. I was told that of the claim in respect of exhibit ten (a claim for $59,490), the invoice 2571, that $39,228.75 plus GST was paid.
Exhibit eleven is an analysis sheet concerning the Mount Cootha project trenching. It sets out the Orca Installation invoice quantities and details the difference between the respondent’s claim and the applicant’s claim.
So far as the contents of exhibit ten are concerned, I was told that all of that which is under the heading ‘Zone A’ was disputed. All of that which claimed under ‘Zone B’ is disputed.
It seems from what I was told during the hearing that the respondent is contending that some of the work that was claimed for was not done.
Exhibit thirteen is an email from Allan Brownlie to Collin Twilley and Denise Hurst. With respect to invoice 2547 for the variation to cages it is said that the Brisbane City Council rejected the amount of $14,518 plus GST and were prepared to pay $9,111 minus the 5% margin which was put in as a variation.
With respect to the email concerning invoice 2571 for trenching, Mr Brownlie challenges distances which were claimed and the detail of the trenching which was claimed. They were prepared to pay $39,228.76 plus GST.
Exhibit fourteen is a statutory declaration from Jared Heinemann with an attachment which sets out GPS locations for the purposes of generally locating with images presented in the plan marked with the address 1012 Sir Samuel Griffith Drive, Mount Cootha, Queensland. It shows GPS locations for pits, holes or concrete depicted in photographs which were attached. The photographs provided were taken on 17 May 2013 by Mr Heinemann. There is no controversy about this evidence.
Mr Popplestone on behalf of the applicant accepted that the evidence of Mr Cunningham was not challenged.
His evidence was that he was the electrical foreman on the Mount Cootha lighting project. He oversaw all the works carried out by subcontractors such as the trenching, conduit laying, backfilling and site clean-up. He provided a site report that was carried out on 16 April 2012 and it is attachment A to his statutory declaration. He states the following:
Zone A
From L2 to L5 there is no concrete over the conduits. The trench depth was 600mm and there is 100mm of asphalt covering the surface in the car park. In P5 to L3 there was a pebble creatr, which is two metres in depth, however the conduit was laid at a depth of 600mm. This is evident as there is a conduit at this depth once pit lid is lifted. L2 to P4 is also a pebble create, which is eight metres in length and the conduit is installed at a depth of 600mm. Once the pit lit is lifted the conduit can be seen and the 600mm depth was achieved. P4 to L1 was trenched at a total length of 24 metres at a depth of 600mm. no concrete covering the conduit was installed. L1 to L26 is a 20 metre conduit run trenched to a depth of 600mm. three metres of the conduit has been installed on the surface of the existing stairs. Total metres trenched in detail A equal 160, Detail B 10m, asphalt 70m. this includes the works in upper car park zone B.
Zone C including D2
L22 to L15 was installed at a depth of 600mm and no concrete was installed over the conduit. The length of the trench is 125 metres. P10 to P7 was trenched at a depth of 600mm and no concrete was used to cover the conduit. The length of the conduit run is 14 metres. P7 to L14 was trenched at a depth of 600mm and no concrete was used to cover the conduit. Asphalt was installed over the conduit trench for a length of 16 metres and a depth of 100mm. L14 to P9 was trenched at a depth of 600mm and no concrete was used to cover the conduit. The length of this run is seven metres. P9 to L11 concrete was used around the conduit to provide protection for the protected tree in the area. The length of this run is eight metres. L11 to MSB was trenched to a depth of 600mm and no concrete was used to cover the conduit. The length of this run is 65mm. Total metres trenched in detail A 230m, detail B 7m, asphalt 16m.
Zone D1
MSB to P8 was trenched to a depth of 600mm and no concrete was used to cover the conduit. The length of this run is 32 metres. P8 to L6 was trenched to a depth of 600mm and no concrete was used to cover the conduit. The length of this run is 11 metres. P8 to L10 was trenched to a depth of 600mm and no concrete was used to cover the conduit. The length of this run is 26 metres. P18 to L24 was trenched to a depth of 600mm and no concrete was used to cover the conduit. The length of this run is four metres. Total metres trenched in detail A 73m.
Attachment A to Mr Cunningham’s statutory declaration has the following findings:
In Zone A
No holes could be dug as asphalt was covering the length of the conduit from L5 to pit 4. There is a total of 10m in pebble create which is on the footpath and also the wheelchair access point.
In Zone B
From P2 to L26. No concrete covering the electrical conduit was found. The cable path originated from a pit to conduit that ran surface along the outside of the existing steps that lead to the old toilet lock, then p to the post approximately two metres of trenching had been carried out and no concrete covering the conduit was found.
In Zone C
Expiration holes were dug over the conduit run in zone C between L22 and L15, one at L16, one at L18 and one at L20, this represents expiration holes dug at 25%, 50% and 75% of the total route length. No concrete covering the conduit was found. The cable that went from L15 to L22 was 126 metres.
In Zone D2
Pit 17 should be pit 7 as the switchboard was relocated to the end of the car park during the lighting installation project and not in the middle as indicated on the drawings. All cable routes were deleted from L6 toP7, P7 to P9 and from P7 to P10. The new pathway as sown in the drawings P7 was moved to the end of the fence line and the following measurements are:
L14 to P7 (moved 6 metres)
P7 (moved) to P10 (14 metres)
From L14 to P7 is covered in asphalt so no digging could be carried out. There was no concrete installed from L11 to P9 however this run Is only seven metres and not 30 metres as shown.
In Zone D1
L14 to pit 17 should have been pit 7 and also in D2.
The affidavit has photographs showing the Zone A trenching before and after the conduit is installed and installed in crusher dust. It also shows a conduit and box installed in crusher dust with tape covering. It also shows Zone C with the conduit shown directing ground and in crusher dust with in some cases back filling with no concrete.
Mr Allan Brownlie was at the relevant time Operations Manager of Tec Elec. He provided a statutory declaration which dealt with invoice number 2547 dated 31 May 2911 amounting to $14,518 plus GST. He also gave evidence and was cross-examined. The effect of his evidence was that the invoice for a variation to the original contract was submitted to the Brisbane City Council was rejected by them as the amount was in excess of what they believed the work that was carried out was worth. The variation was for extra depth required to dig down for installation of cages for light fittings.
After the council rejected the invoice and the variation claim, a meeting was held with the council and Mr Collin Twilley from the applicant. He was told that the council had done their investigations and they would accept a variation for $8,655.44 plus GST.
Attachment 3 to his affidavit is a variation notification dated 20 June 2011. It approved a spreadsheet variation for extra depth to the pole foundations in the sum of $9,111 plus GST. Tec Elec produced an invoice number 10635 which was the final claim dated 21 June 2011 to Brisbane City Council including the variation for an amount of $9,111.20 plus GST. The amount of $8,655.44 plus GST was paid to Orca Installations and Solar Solutions Pty Ltd by Tec Elec on 7 October 2011.
Because this claim is a minor civil dispute claim based on a debt said to be owing by the respondent to the applicant, it is necessary for the application to show that there was an agreement about the variations claimed.
Mr Brownlie’s evidence is to the effect that there was not such an agreement. Because the council rejected the invoice submitted for variations after the work was done, the respondent was not prepared to pay anything other than what the council had agreed to.
The difficulty for the applicant is in showing that there was an agreement for the variations as later claim. On Mr Brownlie’s evidence, which I accept, there was not an agreement as to the variations.
The Tribunal in the minor civil dispute jurisdiction does not have jurisdiction to consider any claim based on quantum meriuit.
Mr Collin Twilley is a director of Orca Installations. He provided an affidavit which became exhibit 16 and he was cross-examined. His evidence is of a general nature and deals with discussions concerning the work and pricings prior to the respondent being awarded the job by the Brisbane City Council. He then deal with, in a general way, what happened after the contract was awarded. His evidence does not deal with any agreements so far as variations are concerned.
The applicant has not made out its claim that there was an agreement as to the variations. It is clear that additional work was required and was carried out, however I am not satisfied that the work carried out was to the extent claimed. I am not satisfied on the evidence provided that the amounts claimed were reasonable and based on the actual work done.
In any event, however, I am not satisfied that there was any concluded agreement as to claimed variations, including the extent and price of variations. I am not satisfied that there is a debt owed by the respondent to the applicant. Accordingly the application is dismissed.