Quinton v GLB Quarrying & Logistics Pty Ltd

[2017] QCAT 46

CITATION:

Quinton v GLB Quarrying & Logistics Pty Ltd [2017] QCAT 46

PARTIES:

Gavin Raymond Quinton t/as GQ Engineering Services
(Applicant)

v

GLB Quarrying & Logistics Pty Ltd

(Respondent)

APPLICATION NUMBER:

MCDO1520-16

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

17 January 2017

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

13 February 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.   The respondent pay to the applicant the sum of $275.00.

CATCHWORDS:

Debt claim – contract for engineering services – entity for which services were conducted – services not for entity invoiced – applicant’s onus to establish liability for payment for services

APPEARANCES:

APPLICANT:

Gavin Quinton
Brendan Long, Solicitor

RESPONDENT:

Utz Wellner, Solicitor/Director
Gerard Laurance Byrne

REASONS FOR DECISION

Application

1. By application filed 22 July 2016, the applicant Gavin Raymond Quinton (‘Mr Quinton’) seeks $18,451.79 plus interest, being for engineering services evidenced by invoices issued to the respondent, GLB Quarrying & Logistics Pty Ltd (‘GLB’) between 3 July 2015 and 25 July 2015, the claim taking into account the sum of $4,333.00 already paid in the period 10 July 2015 through 25 July 2015.

Background and evidence

1. Payment of 26 invoices for the period 3 July 2015 through 25 July 2015 were claimed out of a total of 34 invoices issued. All the invoices claimed, bar one, related to work on one giant sized crusher to be used in mining. Mr Quinton was a boilermaker/fitter.

2. The following 14 invoices produced to the Tribunal by GLB were issued by Mr Quinton (GQ Engineering) to an entity C&G Group Mining and Civil (‘C&G’):

Invoice Date	Invoice Number	Sum Due ($)
10 July 2015	1900995	960.00
10 July 2015	1900996	715.00
10 July 2015	1900997	750.00
11 July 2015	6557951	715.00
11 July 2015	6557952	750.00
12 July 2015	6557953	715.00
12 July 2015	6557954	750.00
12 July 2015	6557955	330.00
13 July 2015	6557956	650.00
13 July 2015	6557957	330.00
13 July 2015	6557958	750.00
14 July 2015	6557960	630.00
15 July 2015	6557962	625.00
16 July 2015	6557966	225.00

1. The following nine invoices produced to the Tribunal by GLB were initially issued by Mr Quinton to Byrne Civil but with the words ‘Byrne Civil’ crossed out on the face of the invoice and the words ‘C&G Group Mining & Civil’ inserted in lieu:

Invoice Date	Invoice Number	Sum Due ($)
3 July 2015	1900980	1350.00
4 July 2015	1900982	675.00
6 July 2015	1900984	825.00
6 July 2015	1900985	650.00
7 June 2015 [sic]	1900987	600.00
8 July 2015	1900989	325.00
9 July 2015	1900990	650.00
9 July 2015	1900991	747.50
9 July 2015	1900992	455.00

1. One unnumbered invoice for $2,531.79 equipment only was issued on 14 July 2015 to GLB and Byrne Civil. Also produced to the Tribunal were Mr Quinton’s Westpac bank statements for the period 1 June 2015 through 31 August 2015 recording some 12 payments made to Mr Quinton by GLB in that time period.

2. Mr Long, for Mr Quinton, stated that whilst most of the invoices were made out to C&G Group Mining & Civil it was the case that Mr Quinton was ‘told by the respondent to put that name on the invoice so he did’; that it was the accountant for GLB who told Mr Quinton to invoice C&G. He said that Mr Quinton had been paid $28,500.00 in the three months June, July and August 2015 with the unpaid invoices being for work in July 2015. He indicated that of the $4,333.00 paid, some was on account of invoices directed to C&G.

3. Mr Wellner for GLB stated all the invoices in question were made out to C&G Group; that Mr Quinton was effectively an independent boilermaker contractor doing work for the Byrne Group (the Byrne Group including GLB); that all work done for the Byrne Group had been paid for by the Byrne Group and that Mr Quinton had not been paid for invoices made out to C&G Group. That he said was because C&G Group was purchasing the crusher no. 175 from the Byrne Group as part of a larger purchase of five crushers. He said the managing director of the C&G Group, Chris Skelly, wanted to make modifications to crusher no. 175 and that it was C&G Group’s Mr Skelly who instructed Mr Quinton to carry out special modifications which apparently were necessary for Western Australian regulatory compliance not applicable in Queensland.

4. Mr Long said C&G had not had a director since 2015 and that all payments to Mr Quinton’s Westpac account in the period 1 June 2015 to 31 August 2015 were made by GLB. The only exception was an equipment invoice which was for materials, not labour; that invoice was directed to GLB and Byrne Civil. He said Mr Quinton was always doing work for GLB, was being paid by GLB as well as writing whatever name he was told to on invoices. He said invoices were signed by an employee who Mr Quinton believed was the quarry manager for GLB.

5. Mr Wellner said that whatever was paid to Mr Quinton it was for work that Mr Quinton did for GLB; that when Mr Quinton was working on the crusher making a modification that was not required that GLB would not be paying for any of such work because that work was at the instruction of Mr Skelly.

6. Mr Long asserted GLB owned the crusher and that modifications were carried out at GLB’s Pinkenba premises. With respect to modifications carried out at the Pinkenba premises, Mr Wellner said the crusher was a monstrous machine in the process of being sold; that Chris Skelly was modifying it for Western Australian compliance. He said that in the event Mr Skelly never purchased the crusher he though C&G got wound up.

Witness Gavin Raymond Quinton

1. Mr Quinton stated he had known Mr Gerrard Byrne for some months; that he had worked at the Pinkenba site for GLB, usually being given work instructions by Ray Young, the manager out in the yard, and on a couple of occasions by Gerard Byrne. He said when he issued an invoice he had to get it signed by someone on site, and that was usually Ray Young. He said he was instructed by GLB’s accountant to write C&G Group on invoices. Mr Quinton said he never received any payment from any entity other than GLB; that over the three weeks he worked on the crusher he only saw Mr Skelly two or three times, speaking to him only briefly. He said he never received any instructions from Mr Skelly, only instructions from Mr Byrne and that there was never any indication from Mr Byrne that C&G was going to pay for the work on the crusher.

2. In cross-examination, Mr Quinton agreed that on a lump of invoices he crossed out Byrne Civil and wrote C&G Group Mining & Civil. He said that Vance, the accountant, told him to ‘cross it out and write C&G Mining & Civil’. However, he did not question the change stating that Byrne Civil had ‘a lot of other companies’.

3. Mr Quinton indicated that he had a person, Pete, on site working for him and agreed there was also a person ‘Bushie’, who was Mr Skelly’s mechanic working on site. In reply to the assertion there was in fact two of Mr Skelly’s mechanics working on site, he agreed there were two but he could not remember the other mechanic’s name. When asked was he aware that Mr Skelly was purchasing the crusher from Byrne Group, Mr Quinton stated that he was not, that he had heard whispers of a purchase.

4. In reply to the suggestion that Mr Byrne told Mr Quinton that GLB was not paying for modifications, Mr Quinton said ‘no he never did, never, not once’. Mr Quinton stated Mr Byrne gave him instructions on modifications every second or third day. He said that the invoices were related to the one crusher, no. 175, all bar invoice 6557967 dated 20 July 2015 for $225.00, which related to work on a steel bin into which scrap metal goes.

5. It was put to Mr Quinton that there was a variation on the signatures appearing on the invoices. He indicated that he thought it was Ray Young’s signature on most, but that the person closest on hand at the time in the workshop was also called upon to sign. Mr Quinton denied getting instructions from Mr Skelly.

Witness Gerard Laurance Byrne

1. Mr Byrne said that Chris Skelly was buying the crusher and that he wanted him to modify the crusher for Western Australian compliance. Mr Byrne said he declined; that when asked by Mr Skelly where he could find a boilermaker, Mr Byrne recommended Mr Quinton and suggested Mr Skelly approach Mr Quinton, which according to Mr Byrne, Mr Skelly did.

2. Mr Byrne said he indicated to Mr Quinton and Mr Skelly he did not consider modification work necessary and that if Mr Quinton was going to do modification work then ‘you need to chase Chris for this money’. He said all work done by Mr Quinton for GLB had been paid for.

3. Mr Byrne stated he thought requests would have come from Bushie who was working for C&G. Bushie ‘was running their operation and he was working along side Gavin and I made it clear to Bushie too “you guys are crazy; you’re wasting your money putting these modifications in”’.

4. Mr Byrne indicated that he knew the other C&G mechanic working on the crusher; that he was an ex-employee from years ago; that he ‘rocked up at the shed with Chris Skelly and Bushie’; that those two and Gavin worked on the machine doing modifications. He considered the extent of modifications being undertaken warranted going back to the manufacturer.

5. In cross-examination Mr Byrne stated he was in the yard ‘pretty well all the time on and off’, but that he did not speak to Mr Quinton often ‘only if we needed repairs to other machines. Not often’.

6. It was put to Mr Byrne that he instructed and gave directions to Mr Quinton to work on crusher no. 175. Mr Byrne answered to the effect not in respect of invoices outstanding.

Conclusions

1. Mr Quinton, as an independent contractor, did a lot of engineering work for Byrne Civil/GLB in June, July and August 2015. That GLB paid Mr Quinton a substantial $28,500.00 as recorded in Mr Quinton’s Westpac bank statements is not disputed.

2. Mr Quinton says he also did work for GLB on crusher no. 175, the subject of a sale by Byrne Civil/GLB to C&G. Of 26 invoices claimed for work on crusher no.175, and one invoice for equipment, 14 invoices were made out directly to C&G Mining & Civil, with a further nine made out to C&G Group Mining & Civil after having the words “Byrne Civil” crossed out. The unnumbered equipment only invoice is made out to GLB Quarrying & Logistics and Byrne Civil. Two further invoices – 6557967 dated 20 July 2015 for $225.00 and 6557971 dated 25 July 2015 for $522.50 – were never produced to the Tribunal. That is a total of 26 invoices.

3. Mr Quinton’s explanation as to how it came to be that Byrne Civil was crossed out and C&G written down as the invoiced entity is implausible. His explanation that Byrne Civil had a lot of other companies flies in the face of his own assertion that all of the $28,500.00 payments made to his Westpac account emanated directly from GLB. His explanation that he just wrote on invoices what he was told to write is cavalier and indicative of an inattentive approach to his own invoicing. The onus was always on Mr Quinton to properly identify, if necessary clarify, the entity with which he was contracting. It is not good enough to carry out work on the assumption that someone is going to pay for it and because invoices had always been paid before.

4. The nine invoices produced with the paying entity changed to C&G were in the period 3 – 9 July 2015, with the 14 invoices made out directly to C&G being for the period 10 – 16 July 2015. At the very least, if Mr Quinton was not immediately aware as to what entity should be invoiced, it would seem that as of 10 July 2015 he certainly was. This could be reasonably construed as Mr Quinton getting it right as to which entity he ought properly invoice, rather than as the result of some sort of instruction from a company accountant. Such to a large degree accords with My Byrne’s evidence that he did not consider modification work necessary, that if Mr Quinton was going to do modification work then ‘you need to chase Chris for this money’.

5. Mr Quinton worked with two mechanics either employed by or otherwise contracted to C&G namely Bushie and another mechanic. Work was carried out by all three in the circumstance where crusher no.175 was in the process of being sold by Byrne Group/GLB to C&G and where, at the very least, Mr Quinton had heard whispers of a purchase. No evidence was produced to the Tribunal indicative of a modification cost dichotomy i.e. that GLB would be liable to pay Mr Quinton and Mr Skelly/C&G to pay Bushie and the other mechanic for work done by all three on the one crusher.

6. Mr Quinton asserted that as a large sum of money $28,500.00 had already been paid by GLB to him in the period June, July and August 2015 then that somehow led to an assumption that any other work carried out by him in that period of time would have been at the instruction of GLB in some way shape or manner, and that such being so GLB was liable to pay him for that work. In some circumstances that argument may have been persuasive but not here.

7. Mr Byrne was straightforward, forthright and credible in his evidence, as opposed to Mr Quinton’s evidence which came across as far more tentative in nature. In short, where there are discrepancies in the recollection of events, the evidence of Mr Byrne is preferred.

8. Here there is a combination of circumstance and events which lead, in the Tribunal’s view, on a balance to preferring the explanations placed before the Tribunal by the respondent, rather than that of the applicant. There is one exception, there was an admission of $225.00 liability being for Invoice No. 6557966 dated 16 July 2015. That being the case it follows that the order be that the respondent pay to the applicant the sum of $225.00. In view of the small sum awarded, a portion of the filing fee only at $50.00 is allowed, a total of $275.00.