Russ v Jones - [2014] QCAT 69

CITATION:

Russ v Jones [2014] QCAT 69

PARTIES:	Arthur Eric Russ & Ana Silvia Ribeiro Russ (Applicants)
v
Rolf Eric Jones & Sonya Jones (Respondents)

APPLICATION NUMBER:

MCDO1569/13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

20 November 2013

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

27 February 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondents Rolf Eric Jones and Sonya Jones pay to the applicants Arthur Eric Russ and Ana Silvia Ribeiro Russ the sum of $3,329.20.

CATCHWORDS:

Minor civil dispute – Monies lent for renovations – renovations partially complete – lenders purchase of partially renovated premises – state of premises at time of sale – responsibility for repayment of monies advanced – point at which lender accepted liability for continuity of renovations

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Arthur Eric Russ & Ana Silvia Ribeiro Russ

RESPONDENT:

Rolf Eric Jones & Sonya Jones

REASONS FOR DECISION

Application

By application filed 4 April 2013 at Hervey Bay the applicants Arthur Eric Russ & Ana Silvia Ribeiro Russ (Mr & Mrs Russ) claim $9,616.89 from Rolf Eric Jones & Sonya Jones (Mr & Mrs Jones) for monies spent by them at the request of Mr & Mrs Jones in paying for materials and labour in the renovation of Mr & Mrs Jones house at 2 Owens Crescent, Regents Park which monies they assert are repayable by Mr & Mrs Jones.

Background and evidence

The parties had been friends for some years. In 2007 Mr & Mrs Jones were in financial difficulty. As owners of an investment property at 2 Owens Crescent, Regents Park they were in the process of renovating with a view to prompt sale. According to Mr & Mrs Russ Mr Jones approached them in February 2008 looking for money to complete renovations of 2 Owens Crescent on the basis that any monies advanced would be repaid upon sale of the house by Mr & Mrs Jones.
On about 29 February 2008 and 4 March 2008 Mr & Mrs Russ paid Bunnings the sum of $2,171.73 for the purchase of kitchen cupboards and a sliding door lock. Mr & Mrs Jones did not object to the quantum of this purchase nor that it was paid for by Mr & Mrs Russ at the time but asserted the sum had been repaid.
On about 1 March 2008 Mr & Mrs Russ paid Ikea the sum of $498.00 for the purchase of a bench top, sink, taps and fittings. Mr & Mrs Jones did not object to the quantum of this purchase nor that it was paid for by Mr & Mrs Russ at the time but asserted that the sum had been repaid.
Mr & Mrs Russ asserted they paid $2,017.65 to Meer Wholesalers Pty Ltd for the purchase of tiles for the whole of the house except the master bedroom. Tiling in the premises took place in April, June & July of 2008. Purchase of tiles at a cost of $1,109.88 was made on 28 March 2008, at a cost of $77.85 on 12 April 2008 and at a cost of $830.00 on 30 June 2008. Mr Jones collected all purchased tiles and delivered same to 2 Owens Crescent.
According to Mr & Mrs Russ, Mr Jones approached them during the course of renovations offering to sell the property to them for $380,000.00. According to Mr & Mrs Jones the sale price was originally $420,000.00 negotiated down to $380,000.00 “as is where is”.
A copy of the contract dated 30 June 2008 between Mr & Mrs Jones as sellers and Mr & Mrs Russ as buyers was produced to the Tribunal. It provided for settlement on 28 July 2008. There were no special conditions at all. Settlement was effected on 21 July 2008. An incentive for Mr & Mrs Russ to buy was the fact that the portion of land on which the house stood was subdividable into two lots. Mr & Mrs Russ asserted an oral agreement running in tandem to the effect all renovations would be completed by Mr & Mrs Jones at their cost (and therefore any sums advanced to Mr & Mrs Jones for renovations whether before the date of the contract, between the date of the contract and the settlement date or even after would be repaid); that they expected to be repaid for all their monetary input into the renovations and that at the time of sale/purchase they, Mr & Mrs Russ, agreed to be repaid in concreting and concrete for another house and the overseeing by Mr Jones of “the mechanics of the subdivision” (of 2 Owens Crescent).
Mr & Mrs Russ asserted none of the above ever happened; that Mr Jones within a short time was out of the concrete business; that when approached about repayment Mr Jones indicated he would do some work on account of monies owing; that some minimal work worth only $300 was performed by Mr Jones; that Mr Jones furnished some plants worth about $120.00; that the total Mr & Mrs Jones managed to repay was a mere $420.00.
Mr & Mrs Jones asserted that he, Mr Jones, and his employees fully landscaped the property at the request of Mr & Mrs Russ in July 2008. This included labour, machinery hire, organic soil, A-Grade turf, plants and a gravel driveway. The cost, if invoiced to Mr & Mrs Russ, would have been $5,500.00 to $5,700.00 plus GST. Mr & Mrs Jones also asserted having carried out maintenance work whilst Mr & Mrs Russ were overseas in the period August 2008 to December 2008.
Mr & Mrs Russ stated that they borrowed the whole $380,000.00 to complete the purchase of 2 Owens Crescent; that they were not interested in nor was there any discussion about landscaping at the time of purchase; that because they borrowed the full purchase price it was vital that they get tenants in immediately; that landscaping in these circumstances was never a priority or even a necessity; that the premises were rented in the first week of August 2008.
With respect to tiling all tiles purchased were utilised in the premises 2 Owens Crescent. Mr & Mrs Russ said there was a delay in the completion of tiling in that all tiling was supposed to be completed prior to 30 June 2008 but because Mr Jones failed to finish preparation work prior to 30 June 2008 only 2 bedrooms were partly tiled prior to 30 June 2008; that although the tiler had started tiling prior to 30 June 2008 he was not able to finish, particularly the bathroom and ensuite, until early July 2008. The tile purchase of 30 June 2008 at $830.00 was for tiles applicable to the bathroom and ensuite. Mr Jones said he had a business to run and could not stay at 2 Owens Crescent to help Mr & Mrs Russ; that the house was sold “as is where is”. That such being the case he was not liable in any event for payment of the $830.00 for the purchase of tiles on 30 June 2008.
Mr & Mrs Russ asserted they paid Mr Jones Sabdia’s Mitre 10 invoiced purchases in the sum of $1,149.51. This was for fittings at 2 Owens Crescent. The Mitre 10 receipt for payment dated 1 July 2008 supports that contention. All the invoiced items went into the 2 Owens Crescent renovation.
Mr & Mrs Russ purchased kitchen appliances – cooktop, oven, rangehood, dishwasher at a sum of $953.00. These appliances were previously ordered by Mr Jones sometime early in July 2008 but in any event well before settlement on 21 July 2008. As Mr Jones was unable to pay the $953.00 Mr & Mrs Russ provided their cheque which was presented to pay for these appliances. The cheque was dated 22 July 2008 with the appliances being picked up shortly after settlement of the sale. Mr & Mrs Russ indicated that they felt this was a deliberate attempt by Mr Jones to avoid payment; that they would not contemplate buying a house without a proper kitchen particularly when it was imperative it be rented immediately. Mr & Mrs Russ asserted that settlement of the purchase was in fact delayed for 1 week from 14 July 2008 to 21 July 2008 to allow Mr Jones to complete renovations.
Mr & Mrs Russ claimed $2,000.00 paid to the tiler. The tiler they stated was only called in to “do the bathrooms” but that instead he was required to finish off unfinished floor tiling that Mr Jones had started. The tiler, they said, had started tiling well before 30 June 2008. Tiling was in fact completed after 30 June 2008 and the tiler was paid $2,000.00 in cash according to Mr & Mrs Russ on about 5 July 2008. No one has been able to locate the tiler since then. He may have been unlicensed. There was never any invoice or receipt.
Apart from conceding a few half days work and provision of some plants totalling $420.00 in diminution of monies outlaid Mr & Mrs Russ denied that any landscaping was carried out at 2 Owens Crescent by Mr Jones.
Mr & Mrs Jones asserted that landscaping was carried out in July 2008. Mr Jones said 20 cubic metres of soil was spread and turf laid in the front and back yard areas including up the side of the house; that he made up garden beds; that a gravel driveway was put in a short time later. He said that plants and shrubs were also planted. Mr Jones reiterated if he had charged for this supply and labour it would have come to $5,500.00 – $5,700.00 plus GST. Mr Jones stated ‘they (the Russ’s) bought me a kitchen and tiles why would I charge them… very happy to do what I could and I did’.
Mr Russ said the only gravel driveway was installed in February 2009 as a result of a tenant complaint. Mr Jones used a Kanga at that time to gravel the driveway, including relevelling, with the gravel being the supplied by Mr Jones but according to Mr Russ in fact paid for by him.
In support of the contention that no landscaping was done Mr & Mrs Russ produced google aerial photos taken in 2007 and 2009. These shots, whilst appearing to be at relatively close range, are imprecise and do not depict enough detail to enable any conclusions to be drawn from them.
Mr Jones contended he was asked to oversee the subdivision of 2 Owens Crescent as Mr & Mrs Russ were required to be absent overseas from July 2009 for prospectively 1 year. This he contended was pursuant to a joint power of attorney given to him, Ms Lyn George, a friend of Mr & Mrs Russ as well as Mr & Mrs Jones and Thomas Russ, Mr & Mrs Russ’ son jointly.
In 2009 the subdivision was underway. According to Mr Jones there were attendances at Logan Council regarding the subdivision. He said maintenance was carried out at 2 Owens Crescent by him whilst Mr & Mrs Russ were overseas.
According to Mr Russ he, Mr Jones, telephoned him in September 2009. He, Mr Jones, apparently could not make headway so Mr & Mrs Russ returned home early in February 2010 and attended thereafter to all the prerequisites for final subdivision of 2 Owens Crescent. Upon return Mr Russ raised the issue of monies owing again with Mr Jones but there was no response of any consequence. Mr Jones felt he did not owe any money at that point. Work he had performed was out of friendship with Mr & Mrs Russ.
Mr Jones stated he also organised a fencing contractor and a Bobcat driver and that he contacted the initial surveyor in respect of the subdivision. Mr Russ however said it was simply a case of supplying a name and a phone number.
Mr Jones asserted that there was no contact between the parties in the last 5 years. Mr & Mrs Russ asserted that there certainly had been contact although minimal.

Witnesses

Jason Rodgers-Falk

Mr Jason Rodgers-Falk an earthmoving contractor was called as a witness for Mr & Mrs Russ. He was at 2 Owens Crescent in June 2009 when Mr Jones attended also and arranged for excess soil to be taken to a property at Hogans Road, Chambers Flat (thus saving dump fees otherwise payable by Mr & Mrs Russ). However Mr Rodgers-Falk could remember little and had no idea of how many truckloads of soil were involved.

Lyn Bernise George

Mr & Mrs Russ called Lyn Bernise George, a friend of both Mr & Mrs Russ and Mr & Mrs Jones. She indicated she was in charge of getting the house ready after the renovations were finished and when the tenants moved in. She did not attend to maintenance work, others did. Thomas Russ, Mr & Mrs Russ’ son, did some mowing and fixed a cupboard. Ms George collected the rent and banked it. She did not observe any landscaping. She cleaned the house for Mr & Mrs Russ before the tenants moved in and it appears may have undertaken a bond clean.

Thomas Russ

Mr & Mrs Russ called their son Thomas Russ. He indicated that while his parents were overseas in 2008 he did some lawn mowing, fixed a chair and cupboard and was involved in a warranty claim on the newly installed stove. He said he passed the house each day and did not observe any landscaping being done.
At the further hearing of this application on 20 November 2013 Ms George was recalled as a witness for the reason that Mr & Mrs Russ’ large volume of material had only been delivered to Mr & Mrs Jones at about 7pm the night before the day of the initial hearing. It contained material that Mr & Mrs Jones would have liked to examine Ms George on but not having been able to traverse all Mr & Mrs Russ’s material on such short notice missed out on the opportunity to do so at the hearing on 21 August 2013.
The Tribunal agreed that Mr & Mrs Jones ought have the opportunity to question Ms George fully.
On the second occasion Ms George recalled that she went to Beenleigh with Ms Jones when she was having some jewellery fixed; she did not recall ever going to the Department of Natural Resources at Beenleigh with Mrs Jones; that going past the house she did not see any significant work being done there; that she did not see dirt or gravel. Ms George stated that she went to the house to do cleaning including a bond clean for which she was paid by Mrs Russ. At some stage she observed a gentleman painting some back verandah doors.
In cross examination Ms George indicated that she recalled paperwork being collected from her house on occasions but could not recall if the paperwork was ever returned to her. Ms George did not know the state of the house at the time of sale.

Tracey Anne Boorman

Mr Jones called Tracey Anne Boorman. She was employed by Mr Jones on a casual basis and worked at 2 Owens Crescent. She recalled moving soil, mowing and cutting back plants at 2 Owens Crescent. She could not remember the condition of the property at the time of the sale.
In cross examination she was able to identify on photos of 2 Owens Crescent where work was done. She said she trimmed hedges, cleaned up gold cane palms, cleaned out trees, mowed and laid out soil. She recalled there was a bit stack of soil at the property of at least a couple of loads. She did not recall ever spreading gravel.

Aiden Robert James Hay

Mr Jones called Aiden Robert James Hay, landscaper. He worked for Mr Jones for 2 years fulltime. He recalled doing landscaping work at 2 Owens Crescent with Mr Jones. His involvement included laying turf, planting, whipper snipping (because the tenant at the time could not), constructing and raising a gravel driveway (a tenant request). He recalled the house as partially renovated when he saw it. Tiles had been jack hammered and some painting done.

Affidavits

Mr and Mrs Russ produced three affidavits. Firstly Kim Russ deposed to assisting Mr Russ with the construction of a retaining wall in July 2011. She stated there appeared to be no other evidence of any landscaping, garden beds, shrubs or other retaining walls in the rear area of 2 Owens Crescent.
Secondly, Roslyn Maureen Cafun deposed to regularly driving or walking past 2 Owens Crescent. Although she observed some work being undertaken at 2 Owens Crescent from time to time she did not see or notice any significant landscaping works being undertaken. She had lived nearby since 1988.
Thirdly, Marilson Santana and Elaine Santana deposed to being present at 2 Owens Crescent in the last week of July 2008 helping their friends (the tenants) move in. They said there was no landscaping, all the trees were dry and old and that there were no new plants. They visited for two weeks in August 2008 and said there was no work done in the garden or in the yard. They said it was dry with not much grass.

Conclusions

Most of the events giving rise to the claim occurred over 5 years ago, blurred and muddled by the disintegration of a friendship of relatively long standing.
Clearly Mr & Mrs Jones were in financial difficulty in early 2008. They sought help from Mr & Mrs Russ. That was forthcoming. Nor was it ever envisaged initially at least that Mr & Mrs Russ would buy 2 Owens Crescent. It was only after Mr Jones approached Mr & Mrs Russ and Mr & Mrs Russ saw an opportunity (the subdivision) that they decided to buy. At the time in June 2008 Mr & Mrs Jones did not have the wherewithal to continue renovating and at the same time run the business Asset Concreting. The Tribunal accepts that in these circumstances that they dropped the sale price for immediate sale that would relieve them of any further liability in respect of 2 Owens Crescent, relieve them of financial pressure and allow Mr Jones to apply himself to Asset Concreting his primary source of income. This accords with the contract dated 30 June 2008 settled quickly on 21 July 2008. There were no special conditions nor any reference to renovations in the contract. Once again this accords with Mr & Mrs Jones parlous financial situation and Mr Jones evidence that 2 Owens Crescent was sold “as it, where is”.
Mr & Mrs Russ’s asserted oral agreement for Mr & Mrs Jones to complete renovations is at odds with the sale contract. Mr & Mrs Russ had the benefit of legal representation. One would have thought that the insertion of a clause in that contract regarding completion of renovations would have been a must not relegated to an oral sideline as asserted by Mr & Mrs Russ and totally denied by Mr & Mrs Jones.
Exactly what constituted completed renovations was never made clear. Rather a list of purchases and payment to a tiler were pursued by Mr & Mrs Russ.
What is clear however is that these purchases on account of renovations effected up to 30 June 2008 and paid for by Mr & Mrs Russ are repayable for the reason that up until that time Mr & Mrs Russ were advancing monies to Mr & Mrs Jones to enable them to continue with renovations with a view to sale. This sits squarely with Mr & Mrs Jones assertion that any monies owed had been repaid through landscaping and other services performed subsequent to sale.
The Tribunal finds that Mr & Mrs Jones are liable to repay the following sums being monies for renovations advanced to them to 30 June 2008:
a)Bunnings  $2,171.73
b)Ikea   $   498.00
c)Meer Wholesalers        $1,009.88 & $77.85
The sum of the $830.00 paid 30 June 2008 coincides with the date of the sale contract and can be properly construed as a purchase made for the benefit of Mr & Mrs Russ having the very same day signed up to purchase 2 Owens Crescent.
Payment of Sabdias Mitre 10 invoice and kitchen appliances invoice as well as payment to the tiler were made after the date of the sale contract and can be construed to be for the benefit of Mr & Mrs Russ they having bought the property on 30 June 2008 accepting, and the Tribunal finds it to be so, the state it was in at the time. With respect to tiling in particular although it appears some tiling was completed prior to 30 June 2008 the primary purpose for which the tiler was engaged was to tile the bathroom and ensuite. That work appeared to have been done after 30 June 2008. By paying the tiler in full on 5 July 2008 Mr & Mrs Russ accepted that tiling was their concern and no longer that of Mr & Mrs Jones. There was no evidence of what portion, if any, might be applicable to presale tiling or whether the tiler had been paid separately for tiling prior to 30 June 2008.

Landscaping and other services provided by Mr & Mrs Jones

The evidence of witnesses Lyn Bernise George and Thomas Russ and the affidavits of Kim Russ, Roslyn Maureen Cafun and Marilson and Elaine Santana all suggested that no landscaping work occurred in July 2008 or probably at all.
Mr Jones witnesses Tracey Anne Boorman and Aiden Robert James Hay stated they were involved in landscaping work at 2 Owens Crescent. Mr Jones never charged for his landscaping work at the time but raises it as an offset to monies sought from him. No breakdown of the cost of landscaping was provided by Mr Jones.

The Tribunal prefers the evidence of Mr & Mrs Russ’s witnesses (particularly that of Ms George) supported by 3 affidavits to that of Mr & Mrs Jones former employees and concludes if any landscaping work was in fact carried out it was minimal in nature. Mr Jones assertion of major cost landscaping in July 2008 is once again at odds with his initial assertion that he and Mrs Jones sold 2 Owens Crescent “as is where is” and his pressing need to apply himself to Asset Concreting. The Tribunal accepts (and there does not appear to be any dispute) that the driveway was gravelled in early 2009 at tenants request. Machinery and labour for this undertaking were provided by Mr Jones. There was no evidence of any invoice. Rather it appears Mr Jones considered this to be part payment of any monies owing to Mr and Mrs Russ. Whilst arbitrary the Tribunal considers an allowance ought be made for Mr Jones participation at $500.00. Other assertions by Mr Jones about maintenance and assistance with the subdivision were peripheral and inconsequential.
Mr Jones lent some assistance to Mr Russ in and after August 2010 and provided some plants in September 2010. There was no charge by Mr Jones at the time nor was there any evidence he ever expected to be paid. Rather Mr & Mrs Russ categorised this assistance as a legitimate offset to monies they considered were owed. In this context the Tribunal accepts the sum of $420.00 should be offset against monies found to be payable to Mr & Mrs Russ.
Mr and Mrs Russ are entitled to recover Bunnings $2,171.73, Ikea $498.00 and Meer Wholesalers $1,109.88 and $77.85, a total of $3,857.46. This sum is offset by $420.00 (assistance and plants) and $500.00 (driveway gravelling) leaving $2,937.46 recoverable.
This application was brought some 5 years after the event. There is no acceptable reason for nor was any proffered for such a delay. Interest is properly charged where prompt and timely action is taken to pursue ones rights. In the circumstances the Tribunal allows 1 years interest, post events, at 10% i.e. $293.74 and the filing fee of $98.00.

Order

The respondents Rolf Eric Jones and Sonya Jones pay to the applicants Arthur Eric Russ and Ana Silvia Ribeiro Russ the sum of $3,329.20.