Pointon v Redcliffe Demolitions Pty Ltd

[2003] QDC 1

DISTRICT COURT OF QUEENSLAND

CITATION:

Pointon v Redcliffe Demolitions Pty Ltd [2003] QDC 001

PARTIES:

DANNY POINTON (Appellant)

v

REDCLIFFE DEMOLITIONS PTY LTD (Respondent)

FILE NO/S:

Appeal 5981/01

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Queensland Building Tribunal

DELIVERED ON:

10 January 2003

DELIVERED AT:

Brisbane

HEARING DATE:

20 December 2002

JUDGE:

McGill DCJ

ORDER:

Appeal dismissed with costs

CATCHWORDS:

APPEAL AND NEW TRIAL – Findings of Fact – conflict of evidence – whether grounds for interfering with finding as to credit.

Queensland Building Tribunal Act 2000 s 92.

Warren v Coombes (1979) 142 CLR 531 – applied.

COUNSEL:

S P Gray for the appellant

R W Taylor for the respondent

SOLICITORS:

Norman & Kingston for the appellant

Michael Hefford for the respondent

1. This is an appeal from a decision of the Queensland Building Tribunal which on 20 November 2001 ordered the appellant to pay the respondent the sum of four thousand dollars within a certain time after which interest will be payable. On 8 January 2002 the appellant was also ordered to pay the respondent’s costs of the proceeding before the Tribunal. The appeal was brought under s 92 of the Queensland Building Tribunal Act 2000.  For reasons which I gave on 24 May 2002, the appeal is by way of re-hearing in the ordinary sense.

1. The dispute before the Tribunal arose out of a contract between the parties for the removal of a house to another site in the same road about one kilometre away.  There was no argument that there was a contract to do the work for $10,000; what was in dispute was whether the contract included restumping the house, that is putting in the stumps necessary for the house to sit on at the new site.  The appellant said it did, and the respondent said it did not. 

The respondent’s case

1. The respondent’s case was that Mr Bell, the Director of the respondent company, had met the appellant through a real estate agent Mr Mallon[1].  They spoke and Mr Bell inspected the house.  There was then a conversation apparently in March 2001.  Mr Bell said that in that conversation he quoted $10,000 to move the house, or $14,000 if he was to be responsible for re-stumping: Ex 1 para 7, 9.  He said that the appellant had said he would do his own stumping, but he had quoted the higher amount in case the bank required the house to be stumped professionally:  Ex 1 para 8.  His understanding at the end of that conversation however was that the appellant was proposing to do the stumping himself: p 18.  Sometime in June 2001 the appellant contacted Mr Bell and indicated he was to go ahead with the job; Mr Bell had no particular recollection of what he was told on this occasion other than that he had the job: p 19.  Because of his understanding of the appellant’s attitude on the earlier occasion, he instructed an employee, Mr French to prepare a contract which would not include stumping, at a price of $10,000. 

   [1]Mr Mallon had no recollection of anything involving the dispute other than the fact that he did arrange a meeting between the parties: Ex 7, p 37.

1. Mr French said that he had modified the standard contract to exclude the stumping and to provide for a price of $10,000, payable with two instalments of $5,000.  He also prepared a letter from the appellant to the respondent for the appellant to sign guaranteeing to pay the balance of the price on or before 6 July 2001: Ex LLB 5 to Ex 1.  That document is dated 18 June 2001, and the clause in the contract form Ex 5 dealing with payment of the second instalment is worded consistently with the arrangement in that letter.  The documents were given to another employee, Mr Dyer who was one of those actually doing the work to take when he went to start the job.

1. Mr Dyer said that he started the work on 18 June 2002: p 30.[2]  Mr Dyer said that he had the document signed, but could not confirm whether any alterations had been made to them at that stage: p 32.[3]  He returned the letter and both copies of the contract to Mr French, who recalled that he obtained them but could not recall when: p 25.  The appellant admitted that he had signed the contract, and also said that it happened on 18 June 2001: Ex 8.  He dated it 17 June, he said by mistake.  Mr Dyer said that by the end of Tuesday (19 June) the house had been placed on a trailer and moved close to the road, and on the following day (Wednesday 20 June) it was moved to the new site: p 33.  There he marked the stump holes for the appellant, the house was moved away and the holes dug using a bobcat.  The house was left on wooden stys: Ex 6 para 13.

   [2]This involved correcting the date in para 2 of his statement Ex 6, evidently based on the date on the contract Ex 5, 17 June 2001.  That was a Sunday and Mr Dyer’s evidence that he started the job on the Monday (18 June) is compelling.

   [3]That has also a modification of what was said in the statement Ex 6 para 4.

1. Mr Bell also said that on the night of the first day in which his men were working on the site he had a telephone conversation with the appellant during which he (Mr Bell) confirmed that the contract did not include stumping, and he was asked to get a definite quote for doing the stumping work: p 8.  He was later told by the subcontractor he normally used for stumping that he could not come out for three weeks, and he told the appellant that on the day when the house was actually moved, ie Wednesday: p 20.  The appellant then confirmed that he would do his own stumping.

1. On 6 July 2001, Mr Dyer returned to the site where the stumps were ready for the house and in the course of the day the house was placed on the stumps and the beams and stys were removed: Ex 6. The appellant handed over to Mr Dyer $1,000 in cash and his cheque for $4,000.   Mr Dyer said that the house was placed on the stumps before he received the cash and the cheque from the appellant: p 34.  The cheque was stopped the same day: Ex 1.  The appellant’s solicitor wrote that day alleging that the respondent had “failed to comply with the terms of the contract”.  He also alleged that the contract had been significantly altered by amendments to paras 5, 13 and 15. 

The Appellant’s case

1. The appellant agreed that he met Mr Bell originally at the office of Mr Mallon, but said that he received a verbal quote of $10,000 cash, or $11,000, if it was going to be a “non cash deal”, to remove the house and to stump the house at the new site: Ex 8.  He was to supply the stumps and supply the bobcat, dig the holes for the stumps and cut the stumps to the right length: Ex 8 para 4[4].  The appellant said that he had been telephoned by Mr French on 15 June 2001 to arrange a time for the work to commence, and he was told that he would need $7,000 in cash as the total price was $14,000: Ex 8 para 6.[5]  The appellant said he replied that that was not the agreement and that it was $10,000 cash, and that later the same day Mr French rang back and indicated that was right, and that he wanted $5,000 on Monday.  Unfortunately these conversations were not put to Mr French in cross examination. In fact a cheque for $5,000 was provided on Monday.

   [4]Mr Bell said that the stumper that he normally used was a subcontractor who would not use stumps supplied by the owner, so that either he would do the whole restumping including supply of stumps or no restumping: p 11.

   [5]In a sense this provides confirmation of a price of $14,000 for the job, presumably on the basis that stumping was included.   No explanation for the drop in price to $10,000 is apparent, unless it was the omission of the stumping.

1. He agreed that the contract was brought out by Mr Dyer when he arrived on 18 June: he said that then para 5 was not deleted, and para 13 had not been altered, although the price was inserted in para 12 and the extra para 15 had been added in: Ex 8.  He also said that the contract he had seen and signed provided in para 5 that the daily cost of gear left on site after one week was the sum of $170 per implement: Ex 8 para 26.  That is not consistent with the (deleted) terms of para 5 in Ex 5.  His assertion that the contract signed contained such provisions was supported by his wife: Ex 9 para 3.

1. In his statement Ex 8 the appellant said that he was told that the respondent was not doing the stumping only after the house had been placed on the new site and the bobcat had left, and that that night he had telephoned Mr Bell about this: Ex 8 para 18, 19.  Under cross examination however he said that the conversation with Mr Bell occurred on 18 June during which he was told that the price did not include stumping, and that his response was to go ahead and organise to do it himself and to deal with Mr Bell later: p41.  The latter version is consistent with the evidence of Mr Bell.

1. The appellant said that on 3 July he spoke by telephone to Mr French and arranged for the house to be placed on the stumps on 6 July provided that he had the $5,000.  Mr French sought either cash or bank cheque.  In fact he provided $1,000 in cash and a personal cheque for $4,000, on which he stopped payment, apparently intending to do so when the cheque was handed over.  He said that in doing this he was acting on legal advice from his solicitor: p 45.[6]

   [6]I hope this was not true, because I would hope that no solicitor would give such advice. It is not immediately apparent why, in acting in this way, the appellant was not committing an offence under s 427A of the Criminal Code. 

1. Initially the appellant said that he handed over the money and the cheque prior to the time when the house was lowered on to the stumps (p 46) but under further questioning conceded that at the time of the payment the house was on the stumps, although he said that the beams and stys had not yet been loaded on to the truck and removed from the site.  Mr Dyer’s evidence was that the house was on the stumps before the payment was received: p 34. 

1. The appellant’s wife also said that the work started on 18 June, and the house was taken to the new site on 20 June: p 15.  The appellant’s wife said that she presumed up until the day the house was delivered to the site (ie 20 June) that the respondent was going to do the stumping as well: p 52.  She said she clearly recalled that the stumping paragraph in the contract was not crossed out: p 53.  She said she had obtained quotes from other people for the shifting of the house for $6,000, and quotes for providing stumping which came in around $4,000: Ex 9.  No written quotes were put in evidence.  The appellant’s wife said that his copy of the contract was not returned to them until 5 July 2001: Ex 9.

1. There was one other piece of evidence before the Tribunal.  Mr French also prepared a house purchase agreement which was sent to Mr Mallon’s Real Estate Agency office, and passed on by him to the appellant: p 38.  Mr Bell said that this was the document intended to reflect the quote of $14,000, and that had been prepared in the wrong form.  The appellant said that this was a document which Mr Bell had offered to provide as a means of assisting the appellant to obtain bank finance, as suggesting that the house was worth $14,000.  On its face the document (Ex 4) was consistent with either explanation.

Decision of the Tribunal

1. The Tribunal member summarised the evidence of the witnesses in a way which, subject to one point, seems to me to be accurate.  When summarising the evidence of Mr Bell she referred to a telephone conversation with the appellant the evening before his employees were due to attend on the site.  That may involve some misunderstanding of the effect of his evidence on p 17; as I understand that evidence as transcribed, it is that the conversation occurred on the evening of the day on which work started, which from Mr Dyer’s evidence, and indeed the evidence of the appellant and his wife, was 18 June.  I do not consider however that this misunderstanding, if that is what occurred, in any way invalidates the Tribunal member’s conclusions. 

1. The Tribunal member was therefore presented with two inconsistent versions.  There was nothing in the surrounding material which clearly demonstrated that one version rather than the other was correct, nor were there any independent witnesses who could throw any light on the situation.  In these circumstances the resolution of the dispute depended very much on the assessment of the reliability of the witnesses, and that is an area where it is recognised that the person who conducts the hearing has a particular advantage.  My approach to the review of the Tribunal member’s acceptance of the respondent’s witnesses is on the basis laid down by the High Court in Warren v Coombes (1979) 142 CLR 531.

1. In particular the Tribunal found that the amendments were made to the contract by Mr French prior to the time when it was executed by the appellant.  It followed that he entered into a contract to remove the house for $10,000 where the written contract did not provide for the respondent to provide stumps for the house to sit on after it had been moved.[7]  In arriving at this conclusion the Tribunal member did not find that the appellant and his wife had been deliberately dishonest, but noted (as appears to me to be correct) that the oral evidence of the respondent’s witnesses was more consistent with their written evidence than was the case with the appellant.  Perhaps the exception was Mr Dyer, but most of the changes in his evidence were pointed out by him.  The Tribunal member noted some inconsistencies in the appellant’s evidence which I have also noted.  Since the contract price was $10,000 and the appellant had only paid $6,000, the respondent was entitled to recover the remaining $4,000.

   [7]Indeed even the deleted clause 5 of the original contract Ex 5 does not expressly provide for such stumping work to be included, and it is not nominated as part of the extent of the works in cl 4.  Nevertheless, the provision of stumps is not listed in cl 6, and the case was conducted on the basis that if cl 5 had not been deleted the respondent would have been responsible for providing stumps, and I am content to proceed on that basis.

Arguments for the appellant

1. It was submitted on behalf of the appellant that there were serious inconsistencies between the oral evidence given on behalf of the respondent and the written statements provided in the proceedings.  It was submitted that the evidence of Mr Bell, that his company did not do stumping, was inconsistent with the proposition that he had quoted $14,000 for moving the house including stumping.  However that does not seem to me to be inconsistent; it was clear from Mr Bell’s evidence that there was a particular stumper whom he regularly used as a subcontractor, and in effect he was quoting on the basis that he would run the risk that the cost of stumping to him would exceed $4,000.  If it proved to be less, the quote was advantageous to him.  I do not consider that this reveals any inconsistency, let alone one which casts any real doubt on the credibility of Mr Bell.

1. Reference was made to the difference between the statement of Mr Dyer (Ex 6) and his oral evidence, to which I have already referred, as to whether the contract he provided to the appellant for signature had had changes made to it at that stage.  I am conscious of that inconsistency, as was no doubt the Tribunal member, but my impression overall, so far as one can form such an impression from a transcript, is that Mr Dyer was a fairly frank witness.  Certainly the statement in the oral evidence was plausible enough.  I am conscious of this point, and do not think it is a significant reason to doubt the evidence of the respondent’s witnesses, particularly Mr French. 

1. Some point was made about the absence of cross examination of the appellant’s wife as to the deletion of cl 5 at the time when the contract was signed by her husband.  But her evidence during cross examination was clearly and emphatically that cl 5 had not been deleted at that point, and it was obvious that the respondent’s case was that it had been, so putting that case to her at that point would have been a waste of time.  In this context I note that the matter was proceeding as an expedited hearing before the Tribunal and that there was a time constraint on the proceedings; it is apparent from the transcript at several points that cross examination which might have otherwise have been fuller was restricted because of concern about the time available.

1. It was submitted that the house purchase agreement Ex 4 could not have been prepared in error as a quotation for $14,000.  The difficulty with this submission is that Mr French was not cross examined about how or why this document came to be prepared; there may have been some misunderstanding between him and Mr Bell as to what it was that he was supposed to be preparing.  It seems to me that either explanation for the format of Ex 4 is plausible, and that it really does not assist in resolving the dispute.  I do not think that the Tribunal member attributed any undue significance to it, however, and this does not provide any justification for overturning her preference for the respondent’s witnesses.

1. It was also submitted that Mr Bell’s evidence at p 20, about being asked by the appellant to firm up the exact price of the stumping, was not plausible because the figure of $14,000 was a firm quote already.  This submission does not, in my opinion, reflect accurately the subject matter of the conversation on 18 June.  Although the figure of $14,000 apparently was a firm price from the respondent to do the whole job, by this stage it was clear that the respondent was not going to do the stumping.  What (according to Mr Bell) the appellant was seeking at that point was a definite price from the respondent’s subcontractor at which the subcontractor would do the stumping work for the appellant.  I do not regard that as inherently implausible.  There are passages in the cross examination from Mr Bell where he does seem to have a slip of the tongue from time to time, but that is not unusual with any witness, and his evidence when considered overall seems to me to make sense.

1. Mr French’s evidence was, I think, essentially consistent with the contemporaneous documents, although he was perhaps misled by the appearance of the date 17 June 2001 on the contract Ex 5.  Once it is appreciated that that is an incorrect date, and that the contract was actually signed the following day, the documents make more sense.  Almost certainly Ex 5 and the letter Ex LB5 to Ex 1 had been prepared by Mr French by the morning of 18 June, when they were given to Mr Dyer to take to the appellant, who signed them that day.  It is clear that Mr French was unable to give, from his own recollection, the date on which he prepared either of the documents. The contract was signed by Mr French (p.23) and dated by him 15 June, the Friday, suggesting he prepared it that day.  The letter could have easily been prepared that day but post-dated since he would have known on the Friday that it was to be presented for signature by the appellant on Monday 18 June, or the letter may have been prepared separately on the Monday morning.

1. The crucial element of Mr French’s evidence was that he altered the contract before it was signed.  There is nothing in the terms of the written contract Exhibit 5 which is inconsistent with this.  The appellant acknowledged that clause 15 had been inserted in the document at the time he signed it, but he did not initial that clause.  If he could sign the contract without initialling that alteration, he might well have signed it without initialling other alternations which were there.  It was open to the Tribunal to accept this evidence, and to reject the contrary evidence of the appellant and his wife.

1. Overall, the appellant has not shown any good reason to doubt the conclusion arrived at by the Tribunal member, or any proper justification for interfering with her conclusion, based on the credibility of witnesses, within the scope of an appeal by way of re-hearing.  In so far as it is appropriate for me to make up my own mind, I do not differ from the conclusion of the Tribunal member, bearing in mind the advantage she had in seeing the witnesses, and the features of the evidence to which I have referred.  The appeal is therefore dismissed with costs.