Rogers v Bradtke - [2014] QCAT 591

CITATION:

Rogers v Bradtke [2014] QCAT 591

PARTIES:	Jill Rogers (Applicant)
v
Jeff Bradtke Kelly Bradtke (Respondent)

APPLICATION NUMBER:

MCDO2479-13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

20 August 2014

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

20 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondents pay to the applicant the sum of $14,288.74.

CATCHWORDS:

Design services – renovations – absence of owners – additional management of renovations – payment of contractors and suppliers inclusive of mark up – acceptance of costings presented

APPEARANCES:

APPLICANT:

Jill Rogers

RESPONDENT:

Jeff Bradtke
Kelly Bradtke

REASONS FOR DECISION
Application

By application filed 29 November 2013 Jill Rogers seeks $13,164.24 she claims is the final payment due for the interior design and fittings and renovations at 75 Red Cedar Road, Pullenvale.

Background and Evidence

Ms Rogers stated she was approached by the respondents Mr and Mrs Bradtke in May 2011 regarding a full interior design package for the renovation of the premises 75 Red Cedar Road, Pullenvale. This consisted of a finishes board, design report plus pricing. A meeting took place in June 2011 at which Ms Rogers said she explained the finishes board and design report and listed costings all of which were accepted by Mr and Mrs Bradtke. She was told to go ahead but shortly after was informed by Mr and Mrs Bradtke that they were going to France for six months. Ms Rogers said that this necessarily imposed on her the additional burden of acting as Mr and Mrs Bradtke’s agent for the purposes of the renovation project as a whole.
Ms Rogers stated she ‘put together an agreement’ to act on behalf of Mr and Mrs Bradtke and that they agreed to it. The agency agreement as such she asserted was constituted by her email to Mr and Mrs Bradtke dated 18 August 2011 and the email reply dated 21 August 2011. In that agreement Ms Rogers confirmed that in her capacity as interior designer she would follow the brief agreed on further renovation at the agreed hourly rate of $140 inclusive of GST.
Ms Rogers said in her capacity as agent she did source other people to carry out ongoing work at the premises initially for example taking away the billiard table and having it stored as well as organising her own house keeper as well as Mr and Mrs Bradtke’s house keeper because they had not packed up the house before they left. She said that she was invoiced for this sort of work in some instances. Ms Rogers said she also made decisions on behalf of Mr and Mrs Bradtke for example she had a fire report done and the air conditioning attended to.
Because the power to the premises kept tripping due to the septic tank requiring cleaning she said she paid for the cleaning of the septic tank. These were all matters that were necessary to be able to get the renovation underway.
Ms Rogers produced an email dated 29 September 2011 to Mr Bradtke setting out a list of payments due and totalling $60,383.28. It included a progress payment on the kitchen, full and/or part cost of fixtures and fittings as well as Ms Rogers hourly charges to that time.
Ms Rogers stated that when it came to payment of her final invoice dated 29 March 2012 that Mr and Mrs Bradtke presented excuses for not paying. Firstly she said they argued there were minor items to be repaired, in particular, a marble fire place out of plumb by 5 mm; that it was a 100 year old house that was being renovated; that sort of thing was to be expected; that to expedite final payment she paid for the repair out of her own pocket.
Secondly when next requesting payment Mr and Mrs Bradtke said they had spent enough that they did not want to spend any more.
Thirdly that tradesmen had not been paid. Ms Rogers said that although there had been disputes with a couple of tradesmen involving Ms Rogers having to retain other tradesmen to fix initial work all tradesmen had been paid.
Fourthly that Ms Rogers should have been handing to Mr and Mrs Bradtke invoices from her contractors and suppliers during the course of the renovation.
It was not controversial that the renovation took some six months from approximately July 2011 to December 2011.
Ms Rogers stated that Mr and Mrs Bradtke did not pay her invoice by invoice but rather generally in tranches of $10,000 and that these sums were credited against her hourly rate and expenditure on contractors and suppliers inclusive of her mark up as presented over the six month period.
Mr Bradtke said there was an initial meeting in June 2011 to discuss curtains, carpets and paint; that the quantum being talked about was $200,000; that the actual agreement was that Ms Rogers would be paid $140 per hour for overseeing work and that Mr and Mrs Bradtke could benefit by Ms Rogers industry connections ie getting goods at wholesale rates and managing the project for them; that on that basis they went ahead. Mr Bradtke stated that he ‘admittedly let things run on pretty freely and easily’. Mr Bradtke conceded that this agreement was verbal.
Mr and Mrs Bradtke went overseas in July 2011. Mr Bradtke returned in September 2011 for some four weeks before returning overseas. Both Mr and Mrs Bradtke returned in December 2011.
Mr Bradtke said he paid $780,000 to Ms Rogers and that when asked about invoices and receipts that they were never forthcoming; that due to Ms Rogers mark ups on contractors and suppliers invoices he and his wife had been stung for, he estimated, $100,000 to $150,000.
Ms Rogers said of the $780,000 paid $340,000 was paid to the builder Sunstate Homes in the person of Amir. Mr Bradtke said the person Amir from Sunstate was Ms Rogers boyfriend. Ms Rogers did not deny that stating that one Ben Sword whom Mr Bradtke proposed as builder was unsatisfactory; that the person Amir only got involved to help out; that Mr Bradtke met with Amir; that Amir was usually involved in building new homes not renovating homes; that Mr Bradtke insisted on paying Sunstate through Ms Rogers account not directly; that Amir regretted ever having got involved in the project.
In answer to when were the works completed Mr Bradtke said ‘no actual sign off ever’; at the end of December 2011 if any.
When asked was there an expectation that Ms Rogers would pay invoices from various suppliers and workmen Mr Bradtke answered ‘absolutely and her hourly rate that was the agreement’. He said Ms Rogers would make money at $140 per hour; that Ms Rogers was double dipping with he Mr Bradtke paying full retail. Mr Bradtke said that it was his fault for allowing this to happen. Mr Bradtke agreed that he paid Ms Rogers ‘to pay the other people’.
Mr Bradtke also said that ‘it was meant to be that I was just paying the suppliers nice and clean cut’.
In answer to the question as to how Mr Bradtke could pay suppliers separately if he was overseas Mr Bradtke said if he got the invoices he could pay suppliers; that he did so.
Mr Bradtke agreed that Ms Rogers was to be paid $140 per hour to manage and ‘do the initial $200,000’. He said that $580,000 was Ms Rogers engaging contractors on his behalf for air conditioning and builders.
When it was suggested that a substantial sum of money was paid to Ms Rogers and that obviously some of that money had been paid to suppliers. Mr Bradtke reiterated that he had paid Ms Rogers $780,000.
Mrs Bradtke asserted the person ‘who did the leather couch’ did not get paid; that an email regarding non-payment had been received. She said she thought the painters had not been paid although she thought they may have gone broke in the meantime.
In reply Ms Rogers said that neither she nor Mr Bradtke were happy with the end product of the leatherwork fitted by the couch person contractor; that she had arranged for another tradesman to complete the job; that there was no entitlement by the person who fitted the leather couch to any further monies as far as she was concerned.
Ms Rogers asserted that she furnished Mr & Mrs Bradtke initial costings in June 2011 and provided a ‘prices June 2011’ document listing carpentry, building and fitout items. Some of these items were designated ‘to be priced’. According to Ms Rogers these costings were inclusive of any mark up she would apply to invoices received in due course from contractors and suppliers. She asserted that such arrangement was accepted in June 2011 otherwise she said ‘I would have had to have gone and unpriced everything’. She asserted that when Mr Bradtke returned from overseas in September 2011 he arranged for additional works to be incorporated into the renovation. These included 5 chandeliers, leather dining chairs, water tank, irrigation, dishwasher, washing machine, clothes dryer and clothes hoist as well as other trades work; that this lead to additional engagement of contractors and purchases from suppliers.
Materials supplied as part of Ms Rogers application records that subsequent to 29 September 2011 Mr and Mrs Bradtke were updated on 25 October 2011 and 26 October 2011 as well as 15 November 2011. All expenditures and sums owing were detailed. Payments were made generally in tranches of $10,000 as indicated previously. Ms Rogers asserted that at no stage did Mr and Mrs Bradtke suggest that expenditures were overly expensive or that she could have done better. She said that she got good prices and good product. Mr Bradtke said that whatever ‘Jill wants to type on her computer has no relevance’. Ms Rogers produced to the Tribunal, amongst other things, the prices June 2011 document, schedule of payments and record of billable hours.

Conclusions

This application is characterised by a good deal of jumbled evidence in relation to an agreement entered into initially in June 2011 and which could have been and should have been better recorded in writing. To the extent that it was oral it was an agreement to provide design services in respect of the renovations at an agreed rate $140 per hour. To the extent that it was in writing it was a “prices June 2011” document forwarded by Ms Rogers to Mr and Mrs Bradtke on 7 July 2011. The costings listed were for a variety of extensive renovations consisting of quoted prices, approximations and a substantial number of items “to be priced”. The Tribunal is satisfied that the costings were inclusive of a mark up by Ms Rogers as asserted by her. The quoted prices and approximations in particular were not disputed at the time by Mr and Mrs Bradtke. None were invoices nor could they have been as renovations were yet to commence. Shortly thereafter Mr and Mrs Bradtke announced they were going overseas to live in France for 6 months. They left on about 11 July 2011.
By email of 18 August 2011 Ms Rogers prepared what might be termed an agency agreement so that she could ‘make decisions on your behalf when you are not available to do so’. That document stated ‘decisions I would take would be consistent with the design brief I have given you… and generally in accordance with any fee proposals and estimates I have given you in the past’. This can reasonably be construed as a reference to the “prices June 2011” document. The agreement goes on to state ‘I would not commission any significant new works or variations without having first discussed them with you… I would simply be making decisions to keep things going along the lines you have agreed with me’. This can clearly be construed as Ms Rogers taking on the practical onsite management of the renovation project.
The agency agreement goes on to state ‘in my capacity as your interior designer I will follow the brief that we have agreed upon and as discussed will ensure that all works carried out are in accordance with our agreed design. Our agreed hourly rate for the above is $140 inclusive of GST’. This portion of the agency agreement can reasonably be construed as confirming that there was still on foot and separately the initial June 2011 agreement role of Ms Rogers providing design services. The agency agreement was accepted by Mr Bradtke by email on 21 August 2011.
Mr Bradtke’s argument that Ms Rogers was simply to be paid $140 per hour for design services and secure contractors and suppliers at cost makes no provision for numerous onsite decisions, changes, disputes, variations and the sourcing of labour and materials that invariably would have been associated with a renovation of this magnitude. Mr and Mrs Bradtke were not available to negotiate directly with contractors and suppliers. They were overseas.
Whilst it may be accepted that some payments may have been made by Mr and Mrs Bradtke directly it is clear the vast bulk of monies were funnelled through Ms Rogers with Ms Rogers paying not only herself but contractors and suppliers over the course of the six month renovation.
Mr and Mrs Bradtke asserted that all contractors and suppliers had not been fully paid but only 2 were in contention – the leather couch person and the painters.
If the procedure that Mr Bradtke asserted was to be followed it would have meant that invoices were sent to him overseas and paid directly by him. Whether such invoices were payable in full could only have been determined by someone onsite i.e. a third person to assess on behalf of Mr and Mrs Bradtke whether the work had been done or supplies received. In any event that in itself would have involved some onsite management otherwise Mr Bradtke would simply have been blindly paying invoices. The crux of Mr and Mrs Bradtke’s argument however revolves around the mark up included by Ms Rogers. Her “prices June 2011” document included her mark up. That document was accepted by Mr and Mrs Bradtke for the purpose of proceeding with the renovation. There were no invoices at that time. Ms Rogers charged Mr and Mrs Bradtke by listing monies payable on account of various renovations undertaken and supplies made. Mr and Mrs Bradtke over a period of 6 months paid Ms Rogers in accordance with the statements presented by her to them. It is not competent for Mr and Mrs Bradtke to now assert that they were dissatisfied with the manner in which the renovation and payments in respect thereof were conducted prior. That might be the case if there was deceit or misrepresentation. There was no evidence that such was the case here. As Mr Bradtke himself put it he ‘admittedly let things run on pretty freely and easily’.
The final sum claimed by Ms Rogers accords with the schedule of payments which records individual expenditure, price, monies paid and monies owing. All monies owing pursuant to that schedule of payments have been paid in full over a 6 month period bar the 1 singular final payment due of $13,164.24. The schedule of payments records how the totality of the relationship between Ms Rogers and Mr and Mrs Bradtke was conducted over the 6 month renovation period. That both parties accepted the arrangement is self evident from the schedule of payments which apart from latter day assertions about the quantum of some items the Tribunal finds faithfully records the functioning of the agreement between the parties.
Clearly Ms Rogers role went way beyond simply providing design services. She virtually managed the renovation from start to finish.
The Tribunal finds that Ms Rogers is entitled to full payment of $13,164.24 together with interest from date of filing of the application (29 November 2013) to date at the Tribunal’s calculator rate $839.90 as well as the filing fee of $284.60.