Reecreations Pty Ltd t/as Trustee for Ree Asset Trust v Winnel Enterprises Pty Ltd t/as Arbor Innovations and Chainsaw McGraw
[2015] QCAT 278
•14 July 2015
| CITATION: | Reecreations Pty Ltd t/as Trustee for Ree Asset Trust v Winnel Enterprises Pty Ltd t/as Arbor Innovations and Chainsaw McGraw [2015] QCAT 278 |
| PARTIES: | Reecreations Pty Ltd t/as Trustee for Ree Asset Trust (Applicant) |
| v | |
| Winnel Enterprises Pty Ltd t/as Arbor Innovations and Chainsaw McGraw (Respondent) |
| APPLICATION NUMBER: | MCDO53029-14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 22 April 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 14 July 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. |
| CATCHWORDS: | Minor civil dispute - contract to hire – hiring agreement – absence of written agreement – proposed sale of applicants business – disposition of machinery in the context of impending sale and purchase – obligation to pay |
APPEARANCES:
| APPLICANT: | Duncan Ree, director Chevaunne Ree, director |
| RESPONDENT: | Joy Winnel, director Andrew Wilson, manager |
REASONS FOR DECISION
Application
By application filed 3 October 2014 Reecreations Pty Ltd trading as Woody Woodpeckers (Reecreations) claimed $15,989.33 being $7,348.00 for hire charges for a Morbark Chipper, Bobcat and Truck to be utilised for land clearing purposes and $8,641.33 for repair of damage to the Morbark Chipper from Winnel Enterprises Pty Ltd trading as Arbor Innovations (Arbor).
Background and Evidence
Reecreations invoice number 997 recorded hiring of the Morbark Chipper, Bobcat and Truck for and/or in the period 26 May 2014 through 5 June 2014. Ms Winnel director of Arbor contended that at the time of alleged hiring discussions were in train for the sale of Reecreations business to an entity Rachandi Enterprises Pty Ltd (Rachandi). Andrew Wilson was the director of Rachandi as well as manager of Arbor. Ms Winnel asserted that it was proposed that Mr Wilson’s Rachandi would purchase Reecreations (Woody Woodpeckers) and then subsequently purchase Arbor; that Rachandi’s proposed purchase of Reecreations never proceeded; that any so called hiring was in the context of Rachandi’s proposed purchase of Woody Woodpeckers and had nothing to do with Arbor.
Mr Ree director of Reecreations admitted discussions for sale of the Woody Woodpeckers business to, he assumed, Arbor were in train but never came to fruition. Mr Wilson asserted discussions and proposals all centred around Rachandi purchasing Reecreations Woody Woodpeckers business.
Mr Ree pointed to all communications being with Arbor at its email address in support of his contention that hiring arrangements were with Arbor and not with Rachandi.
Ms Winnel stated Rachandi did not have an email address; that all emails were sent through Arbor’s email address.
Mr Wilson contended the Morbark Chipper, Bobcat and Truck came into Rachandi’s possession in contemplation of a purchase contract between Rachandi and Reecreations being completed; that there was no agreement for hire, in fact zero negotiations for hiring of equipment.
The Morbark Chipper, Bobcat and Truck were to be utilised at a construction site at Smith Street on the Gold Coast. Seymour Whyte was the head contractor. Reecreations would under normal circumstances have got the land-clearing contract with Seymour Whyte. Mr Ree approached Mr Wilson to do that job.
The Creditor Establishment Request form required by Seymour Whyte as head contractor named Rachandi as creditor. The email of 22 May 2014 though sent from Arbor in fact emails the Creditor Establishment Request form completed by Rachandi.
Mr Ree asserted the Morbark Chipper, Bobcat and Truck were all picked up by Arbor’s employees. The Truck from Wynnum Road, Tingalpa, the Bobcat from a Sandgate job site and the Morbark Chipper from Caboolture/Morayfield. Mr Ree said he assumed all were taken to Smith Street, Gold Coast construction site; that the Truck definitely made it to that site because it was ultimately collected from there.
Mr Wilson said he collected the Morbark Chipper from Burpengary and that the Bobcat and Truck were dropped off at Burpengary. The Morbark Chipper was then collected from Burpengary and taken to Narangba and then to Seymour Whyte’s Gold Coast construction site.
Mr Wilson asserted the Morbark Chipper was tested and found to be non-functional; that an entity Equipment Seekers of the Gold Coast inspected the Morbark Chipper and found one of the chipper blades had been almost bent in half and was stuck in the drum, the inspection costing Rachandi some $1,500.00. Mr Wilson said the chipper was never used on site at Seymour Whyte’s Smith Street construction site; that two other chippers were used on site one having to be hired from Greenleaf Tree Services to complete the land clearing.
Mr Ree said the first he knew of a problem was on 30 July 2014 the day Reecreations invoice for repairs to the chipper was issued to Arbor. He said the chipper had been sent to the Redland Service Centre on 18 June 2014 because it was due for a service.
Mr Wilson asserted that as far as the Bobcat was concerned the bucket would not open; that it was never used; that a Bobcat was hired from an entity C N Contractors and utilised for land clearing at Smith Street. He asserted the Truck was only ever used to transport the chipper to Smith Street.
Mr Wilson admitted it was his intention to use the Chipper, Bobcat and Truck so as to enable, he said, Rachandi to carry out land clearing at the Smith Street construction site.
Mr Ree admitted no written hiring agreement was ever entered into. Reecreations form of written hire agreement and terms and conditions were produced at hearing but these were blank forms. Apparently it was overlooked.
An email dated 12 November 2014 from one Darren Falcone, operations manager stating that on 21 May 2014 he witnessed a conversation between Mr Ree and Mr Wilson was produced at hearing. He stated he heard Mr Ree and Mr Wilson talk about a job at Smith Street; that Mr Wilson could do the job for Seymour Whyte; that Mr Ree told Mr Wilson he could hire equipment from the company and gave Mr Wilson a list with prices. Mr Wilson denied any hiring or being given a list of prices.
Mr Wilson asserted that the chipper was later repossessed and that repairs were never carried out; that it was subsequently auctioned or sold in its non-functional state to a third party.
Mr Wilson contended that the Morbark Chipper, Bobcat and Truck coming into the possession of, he said, Rachandi was in the context of the purchase of Reecreations Woody Woodpeckers business; that possession was a ‘pre-happening’ on the basis that the ‘pending contract would be completed’; that Reecreations was not informed that the Morbark Chipper was not working because it was not a hiring agreement otherwise he said the ‘clock would have been ticking over’.
Mr Ree contended that, albeit verbal, there was always a hiring agreement in place.
Conclusions
Despite Tribunal directions the hearing was characterised by a paucity of documentary evidence.
Reecreations claims are predicated on there being an enforceable hiring agreement between, it was contented, Reecreations and Arbor. This is not supported by the evidence.
No signed hiring agreement was produced to the Tribunal. Why Reecreations a company in the business of, amongst other things, hiring land clearing machinery would part with possession of undoubtedly expensive machinery without having the hirer sign its hiring agreement which would have been subject to its detailed terms and conditions was not explained other than to say it was overlooked. This omission occurred in the presence of Mr Falcone operations supervisor.
Mr Ree’s handing over of expensive machinery accords more with and sits comfortably with Mr Wilson’s assertion that Rachandi was to carry out the Smith Street land clearing job (which it did) in lieu of Reecreations; that this occurred in the context of impending sale and purchase.
Mr Falcone’s statement suggests the Smith Street job was being referred to Mr Wilson. Mr Falcone’s statement that Mr Wilson could hire some equipment and was given a list of prices is contradictory to what followed. Despite the presence of Mr Falcone, Mr Ree and Mr Wilson no hiring agreement was signed off at the time by Mr Wilson in either his capacity as manager of Arbor or director of Rachandi. In the context of the proposed and probably fairly well advanced purchase of Reecreations Woody Woodpeckers it is not surprising that the Smith Street job was to be undertaken by Rachandi.
Then there is the forwarding of the Creditor Establishment Request completed by Rachandi and sent from Arbor’s email address to Mr Ree on 22 May 2014. It would have been clear to Mr Ree as recipient of that email that the Smith Street job would be carried out by Rachandi; that Rachandi would be the entity doing the land clearing and consequentially the entity utilising the machinery in question.
In fact, here, there is no or insufficient evidence of any hiring agreement at all; that the land clearing job at Smith Street together with expensive machinery was given to Mr Wilson on or about 21 May 2014 in a manner contrary to Reecreations own asserted manner of hiring ie a written hiring agreement.
As far as the condition of the Morbark Chipper is concerned the Tribunal accepts the evidence of Mr Wilson and where applicable the evidence of Ms Winnel that the Morbark Chipper was in a damaged state at the time of collection and could not be utilised.
There was no evidence that the Morbark Chipper was properly checked as fully functional prior to it being collected.
Mr Wilson gave a cogent explanation of the damaged state of the Morbark Chipper based on what was apparently a costly inspection. Clearly if the Morbark Chipper was never used it could not have been operationally damaged.
The Tribunal concludes there was never any hiring agreement; that the Morbark Chipper, Bobcat and Truck were handed over in anticipation of a sale and purchase that never eventuated and that there was no damage ever occasioned to the Morbark Chipper by either Rachandi or Arbor.
The application is dismissed in its entirety.
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