Sadat v Taneski (Civil Dispute)
[2018] ACAT 39
•6 April 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SADAT v TANESKI (Civil Dispute) [2018] ACAT 39
XD 837/2017
Catchwords: CIVIL DISPUTE – oral agreements to carry out work inside and outside applicant’s property – part payment – defective workmanship – unfinished work – agreements terminated – works completed by other tradespersons – claim for damages
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 16, 17, 18, 20, 48
Cases cited:Bellgrove v Eldridge (1954) 90 CLR 613
Robinson v Harman (1848)154 ER 363
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8
Tribunal: Presidential Member E Symons
Date of Orders: 6 April 2018
Date of Reasons for Decision: 6 April 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 837/2017
BETWEEN:MIRWAIS SADAT
Applicant
AND: CVETKO TANESKI
Respondent
TRIBUNAL: Presidential Member E Symons
DATE:6 April 2018
ORDER
The Tribunal orders that:
Judgment for the applicant in the amount of $10,480.46 being $10,330.46 damages and the filing fee of $150.00.
The respondent pay the judgment monies of $10,480.46 to the applicant by close of business 4 May 2018.
Subject to Order 4, upon receipt of the payment in order 2, the applicant forthwith instruct Still Standing Sheet Metal Pty Ltd of 15 Wiluna Street, Fyshwick to release to the respondent the materials they are holding for Carport 2.
If the respondent fails to pay the judgment monies to the applicant by the due date in Order 2 the applicant retains ownership of the carport materials in Order 3 and may dispose of them as he sees fit.
………………………………..
Presidential Member E Symons
REASONS FOR DECISION
Introduction
These proceedings have arisen from a series of verbal agreements entered into between the parties for the respondent to carry out works for the applicant at his property in Kaleen.
The reasons below explain why the Tribunal has entered judgment for the applicant in the sum of $10,485.46 and made orders in relation to the carport material being held by Still Standing Sheet Metal. The respondent withdrew his counterclaim at the commencement of the hearing. It was formally dismissed on 8 January 2018. The Tribunal has made orders in relation to the payment of the judgment monies to the applicant and the release of the materials for the double carport held by Still Standing Sheet Metal to the respondent.
In these reasons for decision the tribunal hearing this matter is referred to as Tribunal. References to the tribunal or ACAT in these reasons refer to the ACT Civil and Administrative Tribunal generally.
Background
In 2013/2014 Mirwais Sadat (the applicant) had entered into a contract with Kashan Constructions Pty Limited (Kashan) to build an extension on his property. This contract came to an end in early 2015 when Kashan failed to meet its contractual obligations. At this time Kashan had not completed parts of the work the subject of the contract. While Kashan was undertaking the work at the applicant’s property Cvetko Taneski (the respondent) worked as a sub-contractor for Kashan on the floors in the applicant’s kitchen, bathroom and laundry.
In mid-2015 the applicant engaged the respondent to complete some of Kashan’s outstanding work. The respondent completed these works. The applicant paid the respondent for this work.
In or about May 2017 the applicant entered into an oral agreement with the respondent to rectify the uneven flooring in the lounge room and spare bedroom in the extension to the property. Thereafter the applicant and the respondent entered into further oral agreements to carry out various works inside and outside the applicant’s property. Various issues arose in relation to the quality of the respondent’s work and the respondent’s use of the applicant’s partner’s credit card for the purchase of two carports instead of one carport. The agreements came to an end when the applicant advised the respondent in mid-June 2017 not to return to his property.
The applicant sought damages in the ACAT from the respondent for the respondent’s unsatisfactory work and for the applicant’s consequent losses. The respondent opposed the application and filed a counterclaim for unpaid invoices.
The proceedings
The applicant filed a civil dispute application (the application) against the respondent on 12 July 2017 in the ACAT seeking :
…reimbursement of the fraudulent transaction made on my credit card and compensation for loss and suffering as a result of Steve’s [the respondent] inability to complete the terms of the contract for the levelling of flooring, dodgy work, replacement of laundry unit, levelling of yard, carrying out electrical work without being licensed and not providing a certificate of work, loss of rent incurred and interest.
On 9 August 2017 the respondent filed a response to the application in which he admitted working for the applicant “on a time and materials basis for a daily rate (some of which I have been paid for).”He stated in the response:
I worked as directed by Mr Sadat … I have no formal agreement with Mr Sadat and only a verbal one to work as directed by him, there is nothing in his claim which can be substantiated.
The parties attended a conference and evaluation on 11 September 2017 at the conclusion of which the application was set down for hearing on 11 December 2017 and directions were made for the filing of further material by both parties. The applicant and the respondent complied with the directions.
In the documents the applicant filed on 5 December 2017 (the 5 December documents) he amended his claim from $15,600 to $27,340.
The respondent included in the documents he filed on 6 December 2017 his counter-claim (the counter-claim) for $2,240 inclusive of GST plus the filing fee and interest from 22 June 2017. The respondent alleged that this amount was owing to him by the applicant, after deduction from his invoices, which totalled $8,690.00, $6,450 which had been paid by the applicant. This counter claim was withdrawn on 8 January 2018.
The matter was heard over two days 11 December 2017 and 8 January 2018. The applicant was represented by his Power of Attorney, Nyomi Bourbous, and the respondent was represented by his Power of Attorney, Michael Ninness. At the hearings both parties gave evidence and were cross examined. The applicant’s partner, Nyomi Boubous, also gave evidence and was cross examined. The respondent withdrew his counter-claim and it was, by order, dismissed. After hearing submissions from the parties the Tribunal reserved its decision. This is the Tribunal’s decision.
Legislation
Section 17 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides that a person may make a civil dispute application to the tribunal.
Section 16 of the ACAT Act states that a civil dispute application consists of one or more of the following:
(a) a contract application;
(b) a damages application
(c) a debt application…
The application is a claim for damages arising from a breach of the contract between the applicant and the respondent. The counter-claim was a debt application.
The tribunal has, in relation to civil dispute applications, the same jurisdiction and powers as the Magistrates Court under the Magistrates Court Act 1930, part 4.2 (Civil Jurisdiction).
Pursuant to section 18 of the ACAT Act, a civil dispute application cannot be made to the tribunal for an amount greater that the tribunal’s jurisdictional limit of not more than $25,000 unless section 20 of the ACAT Act allows the application to be made.
Section 20(2) of the ACAT Act provides that a person may abandon the excess[1] by limiting the claim to $25,000.
The issues
[1] Section 20 (1) This section applies if a person would be entitled to make an application claiming an amount greater than $25 000 in a court of competent jurisdiction.
The parties agreed and the Tribunal finds that the applicant and the respondent entered into various oral agreements between mid-May 2017 and mid-June 2017 for the respondent to undertake various works at the applicant’s property. These works included internal work and external work.
The parties disagreed as the terms of some of the oral agreements, the quality of the respondent’s work and the damages claimed by the applicant. The Tribunal considers these issues below.
Consideration
The applicant’s evidence and submissions
In the 5 December documents the applicant broke down his claim as follows:
(a) Relevelling of flooring in lounge and spare bedroom $ 1,000
(b) Repainting of wall where respondent patched holes he had
made and painted a strip of undercoat $ 1,500
(c) Door to replace door which respondent cut bottom off $ 450
(d) Relevelling of back yard $ 1,000
(e) Payment to electrician to complete certification and issue
Certificate $ 540
(f) Costs incurred to install single carport and refund of
respondent’s fraudulent purchase on credit card $ 6,500
(g) Replacement laundry cabinet damaged by respondent $ 1,500
(h) Loss of rent for six months $11,700
(i) Pain and suffering $ 2,000
(j) Filing fee $ 150
(k) Return and re-erection of old carport $ 1,000
TOTAL $27,340
Pursuant to section 20(2) of the ACAT Act the applicant abandoned any excess of his claim exceeding $25,000 at the commencement of the hearing.
The applicant relied on the following documentary evidence:
(a)Chronology of events from 2014 to 11 September 2017.
(b)List of amounts claimed by the applicant.
(c)Table setting out invoices from respondent, whether work is outstanding, amount claimed by respondent, why applicant is disputing the respondent’s claims, amounts quoted by contractors to do the work and amount claimed by applicant.
(d)Appendix 1 – four receipts from respondent, applicant’s receipt for purchase flooring, underlay and skirting boards and photograph of flooring.
(e)Appendix 2 – photographs sliding door inside and outside.
(f)Appendix 3 – photographs slab floor after old flooring removed and after new flooring laid.
(g)Appendix 4 – internal and external photographs of front door.
(h)Appendix 5 – four photographs of applicant’s yard prior, during and after the respondent’s work.
(i)Appendix 6 – photographs of applicant’s front yard prior to and after respondent’s work.
(j)Appendix 7 – photograph of original carport and documents from Still Standing Sheet Metal Pty Ltd (SSSM) and EFTPOS receipt and emails to and from ACT Planning 31 May 2017 and 6 June 2017.
(k)Appendix 8 – two photographs of dining room floor boards.
(l)Appendix 9 – eight photographs of laundry cabinet; photographs of bin cupboard and photographs of installed dishwasher and cupboard.
(m)Appendix 10 – receipt for dishwasher.
(n)Appendix 11 – receipt for additional floor boards purchased by applicant and photograph of living room floor after levelling agent applied (1 June 2017).
(o)Appendix 12 – two photographs of living room floor after second levelling agent applied (11 June 2017).
(p)Appendix 13 – email from SSSM 11 December 2017.
(q)Appendix 14 – photograph of disassembled old carport.
(r)Appendix 15 – quotations from Hood’s Carpet Court 29 September 2017 and Canberra Floorworld 3 October 2017.
(s)Appendix 16 – painting quotations from Superb Services 17 September 2017 and CG Home Maintenance Services dated 10 August 2017 and Bunnings receipt dated 4 June 2017.
(t)Appendix 17 – receipt dated 16 October 2017 JB Slab Pty Ltd for levelling front and back yard and bobcat hire.
(u)Appendix 18 – report from Meekies Electrical & Data dated 8 October 2017 and receipt from Meekies Electrical & Data.
(v)Appendix 19 – letter to respondent from applicant dated 28 June 2017; invoices AT84 Pty Ltd for materials and erection of single carport, colour bond fencing and gate and flashing dated 18 September 2017 and 10 October 2017.
(w)Appendix 20 – Quotation from Detlev’s Appliance and Electrical Care for removal and supply laundry cabinets and shelf; quotation from Cabinet Touch 1 November 2017 for supply of cabinet for washing machine and dryer and door for bin cabinet and extra shelf.
(x)Appendix 21 – Statutory Declaration Anne-Maree Elizabeth Hevey 12 October 2017; email and letter from Independent Property Management dated 18 October 2017; Letter from Luton Properties dated 23 October 2017; email from Element Property Services dated 24 October 2017 and copy of signed incoming condition report for 34A Pambula Street, Kaleen.
At the hearing the applicant provided a copy of a quotation from Hood’s Carpet Court dated 5 October 2017 and a series of emails between himself and Access Canberra between 24 October 2017 and 25 October 2017 in relation to the electrical work at his property. He also provided a copy of his letter to the respondent dated 28 June 2017.
The applicant said he entered into various oral contracts with the respondent to carry out the following work at the applicant’s property:
(a)Levelling of flooring in lounge and spare bedroom.
(b)Laying new bamboo flooring, replacing the skirting boards and repairing any damages to match the rest of the wall.
(c)Removal of sliding door, installing new internal wall and external wall, filling the gaps and painting walls to match.
(d)Repairs to laundry cabinet.
(e)Installation of dishwasher and adjustment of cabinet next to it.
(f)Engaging licenced electrician to install wiring for two wall lights and two power points.
(g)Electrician to provide electrical certificate for installation of light fittings and dishwasher.
(h)Levelling front and back yard, in preparation for concreting and paving.
(i)Purchase of materials and installation of carport.
The applicant told the Tribunal that he was not pursuing recovery of damages for the respondent’s work on the front door (refer Appendix 4 in [24g] above).
The respondent’s evidence and submissions
The respondent relied on the following documents filed on 26 October 2017:
(a) A statement including:
(i) Index to Response and Chronology of events Overview.
(ii) Chronology of events and “duties undertaken instructed by M. Sadat and N. Bourbos.”
(iii) Response to photos in applicant’s Appendices 1F, 3A, 3B, 11B and 12A in relation to the levelling of the flooring.
(iv) Response to photos in applicant’s Appendix 2 – sliding door and internal and external wall.
(v) Response to photos in applicant’s Appendix 4 – exterior door being cut.
(vi) Response to photos in applicant’s Appendix 5 – rear yard before and during landscaping.
(vii) Response to photos in applicant’s Appendix 6 – front yard before and after excavation.
(viii) Response to photos in applicant’s Appendix 7 – carport and documents from Still Standing Sheet Metal.
(ix) Response to photos in applicant’s Appendix 8 – installation of flooring and skirting boards in dining and main bedroom.
(x) Response to photos in applicant’s Appendix 9 – laundry cabinet, bin cupboard and kitchen cupboard.
(xi) Response to photo in applicant’s Appendix 14 – return of old carport.
(xii) Response to documents in applicant’s Appendix 18 – electrical work.
(xiii) Response to documents in applicant’s Appendix 21 – loss of rent.
(xiv) Respondent’s Optus accounts 24 April 2017 to 23 May 2017.
(xv) Two invoices from John Marich, Electrical Contractor dated 18 and 26 May 2017.
(xvi) Statutory Declaration Kate Ninness dated 23 October 2017.
(xvii) Email dated 24 August 2017 from applicant to respondent’s Attorney, Michael Ninness.
(xviii)Ten photographs relating to ‘start floor work’, ‘start wall/slide door’ and ‘return old carport’
(b)The following documents which were attached to his response filed on 6 December 2017. Although these documents supported the respondent’s counter-claim which was discontinued during the hearing, the Tribunal has considered these documents as they also relate to the work the subject of the application:
(i) Statement of the activities/tasks he was asked by the applicant to work on, namely:
A.Level original floors and lay new flooring;
B.Remove sliding door and install new wall internal and external;
C.Prepare front and rear yard for landscaping;
D.Extend existing laundry cupboard;
E.Remove existing cupboard to make room for dishwasher; and
F.Electrician to install power points/lighting.
(ii)A chronology;
(iii) A summary of invoices rendered by him to the applicant and copies of the invoices; and
(iv)Calculation of interest claimed.
The respondent provided references from Alam MJ Mirza 20 November 2017 and Stan Secko, Director, SPS Strategic Property Services (ACT) Pty Ltd 23 November 2017.
The Tribunal will first consider the evidence from the applicant and his witness and the respondent in relation to the terms of the oral agreements between the applicant and the respondent, then the applicant’s claim that the respondent’s work was defective and that the respondent fraudulently ordered two carports instead of one carport on his partner’s credit card and, finally, the applicant’s claim for damages in [22] above.
The agreements
Verbal agreements, including the agreed terms, are notoriously difficult to prove which makes the enforcement of a verbal agreement time consuming and challenging.
There can be issues with the parties having different recollections of what was agreed, or one party being untruthful and the tribunal having to weigh up the word of one party against another.
While the applicant and the respondent gave different versions of their discussion leading to them entering into the oral agreements, the Tribunal is satisfied and finds that there was an oral agreement between the parties in relation to the floor levelling and further oral agreements for the other work the subject of these proceedings. The respondent rendered invoices to the applicant for his work. The applicant paid the respondent cash amounts during the time the respondent was working for him and the respondent recorded these payments on his invoices.
While the applicant alleged that the respondent had raised further work needing to be done while he was working at the applicant’s property and the respondent alleged it was the applicant asking and directing him to do the further work, the Tribunal is satisfied that it does not matter who initiated the discussions.
Having considered the evidence, the Tribunal is satisfied and finds that as the respondent was working for the applicant, at times the respondent advised the applicant that other work needed to be carried out and at other times the applicant asked the respondent if he was able to do other work for him.
Relevantly, for this matter, the Tribunal is satisfied and finds that the parties entered into separate oral agreements for each of the jobs. Sometimes the respondent was working on more than one job for the applicant. The respondent had a running tab. The respondent prepared invoices from time to time although it appears that he did not deliver them to the applicant until the applicant had terminated his work. Apart from the invoice for levelling the floor in the lounge and spare bedroom the invoices were not separate task specific invoices.
During the hearing the parties did not agree on the actual terms of the work the respondent was to undertake in relation to the floor levelling, or the painting and patching of the holes in the bedroom walls caused by the respondent removing the floorboards, or the scope of the electrical work, or the scope and duration of the work to the front and back yards, or the removal and purchase of a double carport or the damage to the laundry cabinet and the outstanding kitchen work. The applicant alleged and the respondent denied that the applicant had told him he wanted to finish the various works as soon as possible in order to rent the property.
The Tribunal will consider the conflicting evidence in relation to each of these claims.
The respondent worked at the applicant’s property from 15 May 2017 to around 22 June 2017.
Levelling of flooring and laying bamboo flooring
The applicant told the Tribunal that Kashan had not properly levelled the cement slab under the floor in the lounge and spare bedroom in 2015. In May 2017 he invited the respondent to look at the floor. When the respondent looked at the floor the applicant asked him if he was able to do this work. The respondent said the floor was capable of being levelled and he would provide the material to level it and lay the new boards provided the applicant bought the bamboo flooring, underlay and skirting boards.
The applicant said the parties then entered into a verbal agreement that the respondent would carry out this work and charge $25m² to lay the new floor boards, which was to total $1,250, and up to $500 to level the surface before the floorboards were laid. The applicant’s partner, Ms Boubous, said she was present when the amount of $500 was agreed for the levelling. She said the other charge was worked out between the applicant and the respondent. The applicant said that they had not discussed how many hours or days the work would take “because it was paid on per job. He quoted me for that amount so whether it took him an hour or whether it took him five hours he was paid per that job.”[2]
[2] Transcript of proceedings 8 January 2018, page 18 lines 43-44; page 19 lines 1-2
The respondent said that when he looked at the cement slab which had been laid by Kashan in 2015 he could see it was poorly laid with large variations and he could only provide an estimate for the work the applicant was asking him to do. He said he had suggested jackhammering the worst parts of the slab and virtually starting again. He claimed that the applicant and his partner then requested ‘just please do whatever is possible for the least amount of money’ which he took to mean they were only to pay for his time at $300 to $350 a day. He claimed that this formed the basis of their agreement and his part was “to do his best to rectify the slab levels before laying the floor covering.” He agreed that there was no discussion between the parties in relation to how long this job would take. The respondent also said that the agreement did not include him laying the skirting boards as he understood the applicant was to be using scotia.
The applicant provided the respondent with a key to his property so he could undertake the work while the applicant and his partner were at work.
Notwithstanding the respondent’s claim that he told the applicant that he ‘would do his best’ the Tribunal is satisfied and finds that it was implicit in the parties’ agreement that the respondent would carry out the work using reasonable care, skill and diligence, that it would be completed in a workmanlike manner and, when completed, the work would be reasonably fit for its intended use.
The respondent had three attempts at levelling the flooring. On the first occasion, the respondent had told the applicant he would use a self- levelling agent describing it “as an easy job” and said “he would use a stick to level it”. He removed the lounge room and spare bedroom floor boards and laid the new floor boards while the applicant was at work.
The applicant said that the newly laid floorboards were neither flush nor level and when he raised this with the respondent the respondent said to give the flooring two weeks to settle as it was bamboo flooring. He recommended that the applicant place something heavy on the new flooring. The applicant moved furniture from the main bedroom and the dining room onto the new floor.
Two weeks later, after returning the furniture to the main bedroom and dining room, the applicant discovered that the new flooring was not level. When these floorboards were subsequently pulled up the applicant said that he saw that no levelling agent had been used; instead the respondent had laid the new bamboo flooring on the original cement base. When this was raised with the respondent the applicant said the respondent offered to give the applicant $500 back.
The applicant said he had told the respondent in the beginning, May 2017, that he “had found certifiers. The building and planning application has gone through. I’m trying to obviously finish these to finish them off and get the place ready for rent. I need the floors done.”[3] When he discovered that the new floorboards were not level after the first attempt the applicant said he stated to the respondent that he was on a timeline and would not be able to find another contractor in time and the respondent had then said to the applicant that “he will fix it.”
[3] Transcript of proceedings 8 January 2018 page 12 lines 17-19
The Tribunal noted that the invoice which the respondent rendered for this work, Number 688462 and dated ‘15-05-17’ stated ‘Level Floor 500 Install Floor Bamboo 1,250’. The Tribunal is satisfied and finds that this invoice corroborates the applicant’s evidence of the price agreed between the parties for this work. The Tribunal rejects the respondent’s evidence where it conflicts with the applicant’s evidence in relation to the consideration to be paid for the floor levelling and laying of bamboo flooring.
As stated above, the applicant alleged that the respondent had not used a levelling agent on his first attempt to level the flooring. The respondent alleged he had ground some of the existing slab between the kitchen area and the lounge and that he laid the first batch of self-levelling cement on the areas where the extension joined with the old part of the building. He said he then laid the new underlay and bamboo flooring from the kitchen to the lounge area and in bedroom two. He agreed that the applicant was not happy with the flooring.
The applicant said that he did not see any evidence of the respondent having used the self-levelling agent in his first attempt at levelling the floor and relied on the photos he had provided to the Tribunal to verify this. He also told the Tribunal that, unlike after the respondent’s second attempt to level the floor, the respondent had not advised him and his partner after the respondent’s first attempt at levelling the floor that they could not walk on the floor and they had to vacate the property for 24 hours.
The applicant said when the respondent told him he had to leave the property for 24 hours after the second floor levelling attempt, when the self-levelling agent was used, this confirmed for him that the respondent had not used the self-levelling agent on his first attempt at levelling the floor.
On the second attempt to level the flooring the applicant said he had observed that the respondent had only applied the levelling agent to a part of the floor. Accordingly, he had asked the respondent if the flooring was now going to be level, to which the respondent said “yes”. The floorboards were then laid. This time the respondent used a laser to measure the level which showed that there was a dip in the middle of the lounge room floor which measured 60cm by 30cm.
When the applicant saw the flooring after it had been relaid he told the respondent he was not happy that the flooring was still not level. He said he could see that the slant was still there. The respondent recommended giving the new flooring a week to settle. After the week passed the applicant told the respondent he still had issues with the level of the flooring and questioned why the respondent had only levelled half of the room. The respondent told the applicant he had applied more levelling agent later and “had worked hard”.
The parties agreed that the flooring was still not level.
The respondent came back a third time in early June 2017, took up the floorboards, applied more levelling agent and laid the floorboards. The applicant said that he had paid for more bamboo flooring in May and June 2017 to replace the flooring which had been laid and had to be pulled up. He relied on the Bunnings receipts dated 31 May 2017 ($61.30) and 15 June 2017 as evidence of these payments.
After the respondent’s third attempt the flooring was still not level. The applicant told the Tribunal he was unhappy that the respondent had not used the self-levelling agent across the entire slab. The respondent acknowledged that the applicant had asked him to pour self-levelling cement across the entire slab. However, he said that the self-levelling cement could only help by 5 to 10 mm at best and no matter how many times he repeated the process the applicant would only see incremental improvements.
The respondent’s evidence in relation to whether or not he applied self- levelling cement and how much he applied was confusing and unsatisfactory. His evidence in relation to his claim that the agreement only required him to do his best to rectify the slab level was not convincing. As a tradesperson he must warrant that his work has been carried out with due care and skill.
Where the evidence of the applicant and the respondent conflicted the Tribunal had no hesitation in preferring the applicant’s evidence. It was given in a forthright and open manner and it was corroborated by his photographic evidence. In contrast, the Tribunal found the respondent’s evidence to be unreliable and is unable to attach any or any significant weight to his evidence.
Notwithstanding that the respondent conceded that the floor was still not level he submitted that the present flooring was reasonable and acceptable and pointed out that the applicant has rented the property with the flooring as it was left in June 2017.
While the applicant conceded that he had rented the property with the flooring as it was left in June 2017, he disputed that the levelling and flooring carried out by the respondent was ‘reasonable and acceptable’. He said that the respondent had not carried out the work with reasonable care, skill and diligence and in a workmanlike manner. The applicant submitted that the fact the respondent had not used the levelling agent at all during the first attempt at levelling the floor boards, when he had represented that he would use it, and that he had not covered the whole area with the self-levelling agent in the subsequent attempts supported this submission.
Having considered all of the evidence, the Tribunal is satisfied and finds that the agreement between the parties was for the respondent to level the floor, not, as alleged by the respondent ‘to do his best’. The respondent agreed that the floor was not level after his third and final attempt. The Tribunal finds that the flooring was not carried out with reasonable care, skill and diligence, that the work was defective and that the respondent has breached the terms of the contract with the applicant.
Is the applicant entitled to damages for the respondent’s failure to level the flooring?
In Tabcorp Holdings Ltd v Bowen Investments Pty Ltd[4] (Tabcorp Holdings) the High Court referred to the ruling principle with respect to damages at common law for breach of contract as that stated by Parke B in Robinson v Harman[5]:
The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.[6]
[4] [2009] HCA 8
[5] (1848) ER 363 at 365
[6] [2009] HCA 8 at [13]
In Tabcorp Holdings at [15] the High Court also referred to the statement made by Dixon CJ, Webb and Taylor JJ in Bellgrove v Eldridge[7] (Bellgrove). In Bellgrove a builder who had built a house which, in breach of contract, contained defective concrete and mortar contended that the measure of damages was limited to diminution in value and did not extend to costs of rectification. Their Honours said[8]:
In the present case, the respondent was entitled to have a building erected upon her land in accordance with the contract and the plans and specifications which formed part of it, and her damage is the loss which she has sustained by the failure of the appellant to perform his obligation to her. This loss cannot be measured by comparing the value of the building which has been erected with the value it would have borne if erected in accordance with the contract; her loss can, prima facie, be measured only by ascertaining the amount required to be rectify the defects complained of and so give to her the equivalent of a building on her land which is substantially in accordance with the contract.
[7] (1954) 90 CLR 613, 617
[8] At [20]
The Tribunal is satisfied and finds that the applicant has sustained a loss by reason of the respondent’s breach of the contract. The applicant is, as far as possible, to be put in the position he would have been in had the agreement with the respondent been performed.
The applicant subsequently obtained quotations from Floorworld ($6,690 including removing flooring - $900 and levelling - “around $900”) and Carpet Court ($5,582 which includes taking up and taking away floor laid by respondent - $909 and additional floor prep area over two areas - $910) for the flooring to be redone. These quotations included the lounge and bedroom where the respondent had agreed to level the floor as well as another bedroom and dining room.
The applicant is claiming damages of $1,000 for this defective work. This amount is less than the amounts quoted in the previous paragraph to remove flooring and levelling. As the work the subject of the two quotations included an extra bedroom and dining room, which were not included in the agreement between the parties, the Tribunal is satisfied and finds that the amount of compensation to be paid by the respondent is $1,000. This represents approximately half of the quoted costs for removing the existing bamboo floor boards and levelling the floor and includes the amounts which the respondent paid to Bunnings in May and June 2017 for the bamboo floorboards which have been laid and will be pulled up.
Repairing any damages to match the rest of the wall
The applicant told the Tribunal that each time the respondent removed the skirting boards, three times in all, he put holes in the bedroom wall and that the respondent agreed to repair the holes and to repaint the wall. He said the respondent had tried to patch the holes up and he put on a layer of undercoat. He said the respondent had not sanded these areas or repainted the wall to match the rest of the room. Further he has only painted a strip in undercoat above the skirting boards. The applicant said that the agreed cost of this work was included in the $1,500 for removing the sliding door in the bedroom and repairing the interior and exterior wall where the sliding door had been.
The respondent disputed that he agreed to repaint the wall.
The Tribunal will consider this claim for damages with the next item.
Removal of sliding door, installing new internal wall and external wall
The applicant said that when the respondent removed the old flooring from the spare bedroom the respondent told him that the sliding door in the bedroom was not sealed properly, that moisture was coming in and that this may lead to problems with the foundations. He was adamant that the respondent initiated this conversation.
The respondent told the Tribunal that the applicant had initiated the discussion about the sliding door as he had asked his opinion about making the room with the sliding door more useable. He said that moisture damage was never discussed.
The Tribunal is satisfied that irrespective of who initiated the discussion about the sliding door, the parties entered into an oral agreement to have the sliding door removed and for the wall to be ‘made good’. The respondent offered two options – either replacing the sliding door or removing the door and closing the gap where the door had been in the wall. The applicant told the respondent he wanted the quicker option because, as he had told the respondent a number of times that he was getting the property ready to rent,[9] and he was in the process of getting the place ready for approval.[10] The respondent recommended and the applicant accepted the second option – removing the sliding door and closing the gap in the wall.
[9] Transcript of proceedings 8 January 2018, page 20 line 3
[10] Transcript of proceedings 8 January 2018, page 19 line 40
When the applicant asked for a “ball park figure for removing the sliding door and patching up the wall” the applicant said the respondent took a day or two to price the work. He orally quoted $1,500 which included the respondent using the materials which were left over from previous jobs. He said the respondent offered to provide these materials to keep the costs down. The applicant said this was a job specific quote and he accepted the offer. This amount is confirmed in the respondent’s invoice 688465 dated 31 May 2017 for $1,500 which the applicant has paid.
The parties were in dispute as to whether this quotation for $1,500 included the painting of the wall. The applicant said painting of the wall where the sliding door had been was included in the $1,500. The applicant said that the respondent had told him that he had been in the industry for approximately 30 years, was an all-rounder[11] and “could do the sliding door”.[12] Therefore, he assumed that the respondent had factored all necessary work into the quotation and this work would include the respondent making good the gap in the wall by installing and painting the new interior and exterior walls.
[11] Transcript of proceedings 8 January 2018 page 21 line 37
[12] Transcript of proceedings 8 January 2018 page 22 line 1
As stated above, the respondent said his estimated price did not include painting inside or outside. His quotation had been to install the timber stud wall, the gyprock and to apply a base coat ready for preparation for painting. He said, when he told the applicant this, the applicant said “don’t worry about the painting, I can do it myself.”
However, the applicant also told the Tribunal when he asked the respondent when he was going to paint the wall the respondent said he would wait until all of the flooring was completed and that it was not until later that the applicant said the respondent told him the painting was not included.
After further discussions the applicant said that the respondent said if the applicant purchased the matching paint he was willing to paint the new internal wall for free and he agreed to apply an undercoat anyway. The respondent alleged that the applicant did not provide the matching paint so he did not paint the internal wall. However, the applicant provided the Tribunal with a copy of his Bunnings receipt dated 4 June 2017 evidencing his purchase of four litres of interior paint, turpentine and various painting items.
The respondent alleged that he had plastered and sanded the walls and had applied an undercoat. The applicant said that the respondent only applied the undercoat to the skirting boards and just above the skirting boards, describing it as a “strip around all walls”. He did not apply an undercoat to the whole of the internal wall. The applicant’s photographs corroborate his evidence.
Having considered all of the evidence, the Tribunal is satisfied and finds that the agreement included the respondent painting the new internal bedroom wall as he had agreed to make good where the sliding door had been located in the wall. If, however, this finding is in error the Tribunal is also satisfied that the agreement was varied by the parties to provide that the applicant would provide the paint and the respondent would carry out the painting. The applicant provided the paint. The respondent did not complete this work. The applicant is entitled to damages for this incomplete work.
The applicant provided two quotations to the Tribunal in support of this claim. The quotation from Superb Services dated 17 September 2017 to repaint the walls and skirting boards in the lounge and one bedroom and one cladding wall totalled $1,500. The second quotation from CG Home Maintenance Services dated 10 August 2017 totalled $12,084. It appears that this quotation, which was barely legible, included ceilings, doors, walls, window and door frames, skirting board, eaves and exterior wall. It does not assist the Tribunal to determine the amount required to complete the outstanding work.
The Tribunal determines that the amount to be paid to compensate the applicant for the respondent’s outstanding work should not include the cost for painting the lounge room walls, the skirting boards in the lounge room, the cladding wall and the walls in the spare bedroom other than the one wall where the door had previously located. Doing the best it can with the available evidence the Tribunal assesses the damages payable by the respondent at one sixth of the cost quoted by Superb Services, $275.
Works to laundry and kitchen
The applicant told the Tribunal that the laundry doors were not sitting flush as the cabinet that Kashan had built was not deep enough for the washing machine and he had asked the respondent “if he would actually just move the hinges back a bit which would actually essentially give the cupboard a bit more room and, therefore, the doors would actually close flush.”[13] He said he asked the respondent if he could do that and the respondent said “Yes. No problems. I’m able to do that.”[14]
[13] Transcript of proceedings 8 January 2018 page 73 lines 14-16
[14] Transcript of proceedings 8 January 2018 page 73 line 24
The applicant denied in cross examination that the respondent had said to him ‘once you cut the laminate you can’t adjust a hinge. If you cut it it’s cut. They’re a sealed unit.’[15] The respondent alleged that he told the applicant that it was not possible to move or replace the hinges and suggested fixing the back of the cupboard which, he claimed, had already been cut by a previous builder. The applicant denied that the back of the cupboard had been cut previously.
[15] Transcript of proceedings 8 January 2018 page 73 lines 26-27
The work in the laundry included closing off the open space above the laundry cupboard doors. The respondent agreed that he was asked to do this work but alleged that there was never any discussion that he use a similar material to the cupboard doors, which had a white gloss finish. He said he offered to extend the top of the cupboard which would take him a day for which he would charge $300 and he offered to pay for materials. He said the applicant accepted his offer.
When the applicant saw the respondent’s work to the laundry cabinet he observed that the hinges had not been moved as requested and that there was “a hole cut in the back wall of the cupboard which had red bog painted around it.” The applicant told the Tribunal that he had not asked the respondent to cut into the laminate at the back of the cupboard; rather the respondent had taken upon himself to cut the back of the cupboard.
The respondent alleged that there were cuts in the back of the existing cupboard which “he made a little bigger in order to fit the washing machine.” He conceded that he patched the back of the cupboard with builder’s bog filler which he said was better suited to use in a wet area and “as it was inside the cupboard the join would not look as bad.” He alleged that the applicant was happy with the work “taking this direction.”
The respondent used material with a matte finish to enclose the area above the cupboard. This material did not match the material in the existing cupboard. It also did not match the walls. The wall the respondent built was not flush with the existing wall. It has a gap of one centimetre to the interior of the laundry.
The respondent was aware that the applicant was unhappy with the work he had carried out in the laundry. He told the Tribunal that the applicant did not ask him to finish the laundry cupboard; he said each time he offered to complete the work the applicant redirected him to another task.
The applicant said the respondent was also asked to install a door to the bin cupboard in the kitchen, remove an existing cupboard to install a dishwasher, to cut back and fit the old cupboard door to remaining cupboard space not utilised by the dishwasher in order to create a smaller cupboard and to install a new shelf in the new cupboard.
The respondent denied that he was asked to install a door to the kitchen bin cupboard but agreed that he had agreed to remove an existing cupboard to make room for the dishwasher and at the same time make a small cupboard next to the dishwasher. He estimated this work would take one day at a cost of $300 for the day.
The respondent subsequently invoiced the applicant $600 for “fixing kitchen and laundry on 22 and 23 May 2017.”[16]
[16] Invoice 688463 dated 28 May 2017
The Tribunal is satisfied that the respondent sourced and installed the dishwasher. He did not install the door to the bin cupboard, or install the shelf in the cupboard adjoining the dishwasher.
The Tribunal has seen the witnesses and considered their documentary and oral evidence. The applicant provided photographs of the laundry cupboard before and after the respondent had undertaken this work. The photographs show the sloppily applied red builder’s bog. The damage to the inside of the cupboard is not only unsightly but demonstrates that the respondent’s work was not carried out using reasonable care and skill. The applicant’s photos also showed where the respondent had carried out work to the top cupboard there were now numerous chips in the existing laminate on the inside of the cupboard. This, the Tribunal finds, is further evidence that the respondent’s work was not carried out using reasonable care and skill.
Where the evidence of the applicant differed to that of the respondent the Tribunal had no hesitation in accepting the applicant’s evidence. Notwithstanding quite intense cross examination the applicant’s evidence did not waver. It was credible and corroborated by the photographs and the documentary evidence. In contrast the respondent’s evidence was difficult to follow and confusing. It lacked credibility.
The Tribunal is satisfied and finds that the respondent damaged the laundry cabinet, the damage is not able to be reasonably repaired and the resulting loss to the applicant should be rectified.
In determining the quantum of damages for the respondent’s unsatisfactory work the Tribunal is satisfied that the laundry cabinet should be replaced. The applicant is seeking $1,500 to replace the laundry cabinet. The two quotations which the applicant provided to the Tribunal exceed this amount. Cabinet Touch’s quotation, including the door for the kitchen bin cabinet and extra shelf, totalled $2,387.10 inclusive of GST. Detlev’s quotation including GST was $2,125.20. In these circumstances the Tribunal is satisfied that the sum of $1,500 sought by the applicant is fair and reasonable for the damage caused by the respondent.
Electrical work
The applicant told the Tribunal that he had told the respondent, when the plaster was being installed in the bedroom where the sliding door had been removed, that he was looking for a licensed electrician to install wiring for wall lights to be installed in the bedroom and to install two power points, one power point in the bedroom and the other in the kitchen. The applicant also told the respondent he needed an electrical safety certificate for the electrical work because any additions to the renovation need the certificate.
The respondent said he agreed with the applicant to source an electrician to install the power points and the light switches and to pass on the costs to the applicant with no additional margin for himself.
It was not in dispute that the applicant had previously told the respondent that, under no circumstances, were any Kashan employees or principals to work on his property. The applicant said the respondent told him he would contact an electrician and he would not be using anybody from Kashan.
Subsequently the applicant became aware that a Kashan van had been seen outside his property when the electrical work was carried out. He said he asked the respondent why that van was outside his house and who had undertaken the electrical work. The respondent told the applicant that the Kashan employees were only providing materials and he, the respondent, had conducted the electrical work. When the applicant asked the respondent if he was a certified electrician, the respondent had replied “no” and then said that Ramon, a Kashan employee and an electrician, had conducted the electrical work contrary to the applicant’s instructions.
However, he told the Tribunal that he arranged for a friend of Ramon’s, John Marich, who was a licensed electrical contractor, to carry out this work on 18 May 2017. He provided copies of the two invoices John Marich had rendered to him for the electrical work at the applicant’s property.
He said John Marich had informed him that the electrical work he had undertaken did not require a ‘Notification of Electrical Work’. John Marich had invoiced him $200 to install the two power points and $250 to install the light switches. On 28 May 2017 the respondent invoiced the applicant for $200 and $250 which the applicant paid. The respondent did not provide the applicant with a copy of John Marich’s invoices.
The respondent said John Marich only installed the wiring for the lights in the bedroom as required by the applicant; he did not install the lights. He said John Marich had told him he could not provide the electrical safety certificate for the lights because he had not completed them. The respondent said that John Marich had told him he could only provide an electrical safety certificate for the power points and preferred to issue both certificates at the same time.
The respondent told the Tribunal that the invoice from Cameron Meek included “replacement of faulty lamp holders” which was not part of the agreed work. This is not in dispute.
The applicant said that he did not know that the respondent had used John Marich as the electrician as he did not provide this information to him. When he became aware that the respondent was asserting that an electrical safety certificate was not required the applicant said he emailed [email protected] in October 2017 and was advised by email that Cameron Meek had submitted a certificate of electrical safety on 12 July 2017 and that John Marich had submitted no documentation for the applicant’s block and section number. The applicant then asked Electrical Inspections in an email “…if any new electrical works were undertaken by John Marich at my property then an electrical safety certificate should have been supplied to Access Canberra, is this correct?”[17] Electrical Inspections advised the applicant “That is correct”.[18]
[17] Appendix 18 in applicant’s 5 December 2017 documents - email from the applicant to Electrical Inspections dated 24 October 2017
[18] Appendix 18 in applicant’s 5 December 2017 documents - email from Electrical Inspections to the applicant dated 25 October 2017
The applicant also said that when the respondent failed to provide the electrical safety certificate, notwithstanding the applicant’s numerous requests, the applicant arranged for another electrician, Cameron Meek, to test and commission the electrical work the respondent had arranged.
The applicant provided the Tribunal with a copy of the report from Cameron Meek in which he identified the following issues he found on testing: (i) the light circuit had been added to and a Residual Current Device (RCD) was not installed; (ii) The power circuit that was added to had an RCD installed but was faulty and would not trip once tested; (iii) there was no main switch on the switchboard which meant that no work could be carried out on any part of the switchboard without getting ACTEW AGL attending and pulling the service fuse to the house; (iv) No earth stake was installed and (v) the bedroom wall lights had faulty lamp holders and needed replacing. Mr Meek rectified each of these issues, applied for and obtained the Certificate of Electrical Safety and rendered an invoice to the applicant for $540. The applicant seeks that this amount be included in the damages which the respondent has to pay.
Once again, the Tribunal found the respondent’s evidence confusing. It was not readily apparent why he had told the applicant that he had carried out the electrical work himself when he was not a qualified electrician and then stated that Ramon did the electrical work when he knew Ramon was an electrician who had worked for Kashan and that the applicant had stated that no employees of Kashan were to do any work at his property.
While the respondent told the Tribunal that John Marich had carried out the work and it was in accordance with the AS3000 he did not provide a report or witness statement from John Marich or call him to give evidence at the hearings.
The Tribunal is satisfied that a fundamental term of the agreement between the parties was that the respondent would obtain a Certificate of Electrical Safety from the electrician after the electrical work had been completed and provide it to the applicant. The respondent failed to do this. In not doing so he has breached a fundamental term of the contract.
Having considered all of the evidence, particularly Cameron Meek’s report, which apart from the inclusion of a charge of $75 for replacement of faulty lamp holders in the bedroom, was not credibly challenged at the hearing, the Tribunal is satisfied and finds that the respondent also failed to adhere to his part of the agreement, namely to arrange for the electrical work to be carried out with proper care and skill. In reaching this conclusion the Tribunal was persuaded by Cameron Meek’s report and the list of the defects he identified in that report.
The Tribunal finds that the respondent is liable to compensate the applicant for his loss incurred in paying the invoice from Cameron Meek for the electrical work, not including the charge of $75 for replacement of faulty lamp holders in the bedroom, he carried out to rectify and complete the electrical work which the respondent had agreed to arrange for the applicant. The respondent is to pay the sum of $465.
Levelling front and back yard
The applicant told the Tribunal that sometime between 17 and 19 May 2017 he had had a discussion with the respondent about upgrading his front and back yards. In this discussion he asked the respondent if could recommend anyone to do this work. The applicant said the respondent said that he had done a few jobs and he could do that for a good price. He also said he knew a highly experienced bobcat operator who could get the task done in one day and would charge $600. The respondent said if he assisted the bobcat operator he would charge for his fees. The applicant said they reached an agreement that the respondent would engage the bobcat operator for the whole day for $600 and the applicant, his partner and her father would also assist so that the work did not exceed one day.
The respondent said that the applicant’s partner had shown him a plan of the backyard with two levels, a retaining wall and steps and he agreed to prepare the backyard in accordance with the plan.
The respondent agreed to speak with his contact, Zoltan, who owns and operates a bobcat, about clearing and levelling the front yard with the bobcat as it would be faster and, therefore, cheaper. The respondent said he gave the applicant a price of $1,000 which included the hire of the driver and the bobcat for one day and this was the basis on which the work proceeded.
The respondent said he and Zoltan estimated the work would take a day of Zoltan’s time, but due to the limited access they would need to hire a smaller machine and it would take an extra day for the work in the front yard.
The respondent also said that part of his agreement with the applicant was that any excess soil would be placed at the front of the property and he would remove it later at the applicant’s cost. The applicant disagreed. He told the Tribunal that the respondent had said that he regularly went to the tip and offered to move the soil and green waste slowly without charge on his future trips to the tip, which the applicant accepted, provided it was removed between 9am and 5 pm. The Tribunal noted that the applicant was also dumping broken cement from the backyard in the front yard and that this, too, needed to be taken away. The respondent subsequently charged and the applicant has paid the respondent to remove the soil and the cement. The Tribunal is satisfied and finds that this corroborates the respondent evidence that he would charge to remove the soil and cement from the front yard.
The respondent and Zoltan arrived at the applicant’s property at 8am on 27 May 2017. The applicant observed Zoltan removing stumps and showing the respondent how to use the bobcat. He said Zoltan then left at 10am and did not return until he collected the bobcat on 29 May 2017. After Zoltan left, the applicant saw the respondent driving the bobcat backwards and forwards. It seemed to the applicant that the respondent was getting used to driving the bobcat. Around 11am the respondent told the applicant the bobcat had run out of fuel and he would have to go to Mitchell to get the fuel. Although Mitchell was 10 minutes from the applicant’s property, the applicant said the respondent did not return until around 12.30pm. He stayed at the applicant’s property until 1.30pm and then requested to go on a break. He did not return until 3.30pm and left the applicant’s property that day around 5pm.
The applicant said Zoltan only worked two hours instead of the whole day as agreed and the respondent worked a total of about five hours on 27 May 2017. The respondent alleged Zoltan drove the bobcat for six hours on the first day, 27 May 2017. Although the applicant, his partner and her father were also working there breaking up cement and dismantling a shed and taking it to the front of the property, the backyard was not completed that day.
The respondent said, after they had stopped work on 27 May 2017, the applicant changed his mind about the backyard and stated he now wanted it to be level rather than split levelled. He agreed to level the yard for an extra $300.
The respondent returned on 28 May 2017. Zoltan did not return on 28 May 2017. The applicant, his partner and her father and the respondent continued to work at the property on this day and still did not finish the clearing and levelling.
The respondent said that he and Zoltan worked on the applicant’s front yard together on 30 May 2017 removing bushes and soil that had been placed out the front from the work carried out on 27 and 28 May 2017. He said that they removed two truckloads of soil and one load of concrete and the following day Zoltan worked for four hours finishing levelling the front yard and removing two truckloads of soil.
The applicant said that the agreement had been that the work would take one or two days. The Tribunal is satisfied that this agreement was corroborated by the respondent’s evidence. The reality is that the respondent and/or Zoltan returned to the applicant’s property and worked there for two more days and the respondent charged the applicant $3,540 for a total of four days plus tip fees which had not been included in the quotation. The applicant has paid this amount. He is not seeking the respondent refund any of this amount.
However, the applicant said that the respondent did not finish levelling the front and back yards and that he had subsequently engaged another contractor, JB Slab Pty Ltd, to finish levelling the yard. He paid JB Slab Pty Ltd $990 and seeks to recover this amount from the respondent.
The respondent told the Tribunal that the applicant had been very happy with his and Zoltan’s achievements at the end of 28 May 2017 and he was not aware that the applicant had an issue with the work until he received the application in these proceedings.
The Tribunal was troubled by the respondent’s evidence in relation to the landscaping. At times it was difficult to follow. It transpired that his Response dated 23 October 2017 had been written by his daughter in English, she said after trying to interpret what she was typing in Macedonian with her father. While the respondent had signed the Response he had, apparently, not read it. When giving evidence he disagreed with some of the statements in the Response attributed to him.[19]
[19] Transcript of proceedings 8 January 2018, page 94 lines 1-36
Where the evidence of the applicant and the evidence of the respondent conflict, the Tribunal had no hesitation in accepting the applicant’s evidence for the same reasons as set out in [96] above.
Having considered all of the evidence the Tribunal is satisfied that the parties’ agreement was for the levelling work to be completed in one or two days, not for a longer period. While the applicant paid the respondent for the four days of work the respondent claimed and is not seeking a refund of any part of that payment, the Tribunal finds that the respondent failed to finish the levelling work the subject of the parties’ agreement. Therefore the Tribunal finds that, when the respondent ‘finished’ his part of the agreed work, it was not then reasonably fit for its intended use. The applicant has incurred costs of $990 in completing the work the subject of the parties’ agreement. The Tribunal accepts the applicant’s evidence that the rectification work was necessary to put the applicant in the position he would have been had the work the subject of the contract with the respondent been completed.
The applicant’s loss of $990 is payable by the respondent.
Purchase of materials and installation of carport
A lot of time was taken up at the hearing in relation to the circumstances leading to the applicant agreeing to the respondent ordering a double carport to replace the single carport at the property. It is not necessary for the Tribunal to consider this evidence as the parties reached an agreement to resolve the payment for and ownership of the double carport during the hearing. The Tribunal will return to this agreement below.
It is, however, necessary to set out the evidence and the Tribunal’s findings in relation to the respondent’s discussions with the applicant in relation to the cost of the double carport and the actions of the respondent that took place on 24 May 2017 when he ordered the double carport which was paid for by the applicant.
It is not in dispute that the parties agreed that the respondent would source the double carport, take down the single carport and erect the new double carport and the applicant would pay for the double carport materials. The respondent said that he told the applicant that the materials came to a price of $2,000 and his labour, allowing approximately four days, would be $1,500.
The applicant told the Tribunal that the respondent had initially told him that the material for the carport would cost approximately $1,500 and that he subsequently said that he had underestimated the cost of the material, the prices had gone up and the cutting for a custom carport incurred an additional fee.
The respondent attended Still Standing Sheet Metal (SSSM) in Fyshwick on 24 May 2017 for the purpose of ordering the material for the double carport. He placed the order and spoke with the applicant’s partner who, after confirming the cost with the SSSM sales person, authorised the payment of $3,502.19 on the applicant’s credit card. The order which the applicant placed with SSSM was for a single carport and a double carport.
The applicant’s partner said she had called the applicant after she had made the payment as she thought it was expensive for a double carport. A day or two later she called SSSM to see if she could cancel the order and obtain a refund. She was not able to cancel the order and obtain a refund as SSSM had started cutting the materials.
The applicant said that at no time was he aware that the respondent had, in fact, ordered and his partner had paid for two carports, a single carport and a double carport, from SSSM. The applicant’s partner discovered this on 14 June 2017 when Stan from SSSM contacted the applicant’s partner and informed her that the respondent had telephoned SSSM and asked the whereabouts of one of the carports which he had, in the order, requested be delivered to Lyneham.
Stan confirmed with the applicant’s partner that the respondent had ordered two carports for two different addresses, neither of which was the applicant’s address. He invited the applicant’s partner to attend SSSM and look at the order placed by the respondent.
The applicant’s partner attended SSSM and looked at the invoice which stated that carport 1 (a single carport) was to be delivered to an address in Lyneham. The quote for this carport was $1,566.73. Carport 2 (a double carport) was to be delivered to the respondent’s address in Kaleen. The quote for this carport was $1,935.46. Notwithstanding the applicant said he had requested that the respondent provide him with copies of each receipt for expenses incurred while working at the applicant’s property, he had not provided a copy of the SSSM invoice or receipt to the applicant. He only provided the applicant with a copy of the EFTPOS printout.
The applicant’s partner said once Stan had confirmed that she was unaware that the respondent had ordered two carports he advised her SSSM would hold all materials until further notice.
Approximately two weeks later the applicant’s partner requested SSSM deliver carport 1 to the applicant’s address in Kaleen. Carport 2 remains at SSSM.
In an email to the applicant dated 5 December 2017[20] the manager of SSSM, Duane O’Hare, confirmed the respondent’s placing of the order for two carports for two different addresses, the applicant’s partner’s payment, her subsequent call to see if she could cancel the order, the respondent asking for one of the carports to be delivered to a Lyneham address, SSSM advising that they could withhold all materials until further notice and the applicant’s partner subsequently requesting that the single carport be delivered to the applicant’s address in Kaleen which was a totally different address to those given originally by the respondent and that SSSM is still awaiting direction on what is to be done with the second carport.
[20] Appendix 13 applicant’s documents filed 5 December 2017
On or about 17 June 2017 the applicant confronted the respondent about the cost of the carport and the fact that he had ordered two carports which the applicant had paid for. He said the respondent denied the whole story. The applicant said he advised the respondent not to attend his property after this date.
By this stage the respondent had already dismantled and removed the single carport from the applicant’s property. The applicant decided to bring a claim for damages against the respondent in the tribunal. In this claim he alleged that the respondent had fraudulently purchased the two carports on his partner’s credit card without telling the applicant or his partner.
In relation to the carport claim the respondent stated in his Response[21] and chronology:
On the 24 May 2017 I became aware that Mal and Nyomi had a number of disputes with other laborers (sic) and trades people and I became concerned they were setting me up to not be paid or blame me for all the damage I was trying to help them rectify.
Mal and Nyomi were aware that the cost of the materials for their carport was $2,000 and that the supplier of the carport, (Still Standing Sheet Metal Pty Ltd) required payment of $3,500.
The additional materials would fund another of my client’s projects.
I totally reject the allegation that I was acting in a fraudulent manner.
On the 24th of May 2017, I asked them to pay for the supplier (SSSM) directly for the double carport if they wished to proceed.
They agreed and Nyomi spoke with Still Standing Sheet Metal (in my presence) and I understand this resulted in them purchasing the materials for the carport.
[21] At pages 8 and 9
In cross examination the respondent was asked about his statements in the Response that he included the second carport in the SSSM order because the applicant was behind with the payments, because he had not received any money from the applicant for a while and because he was concerned that he might not be paid. The respondent conceded that the carports were ordered on 24 May 2017 and that the applicant had not only paid him $1,000 the day before but that he also paid $3,500 to SSSM on 24 May 2017.
During cross examination, while the respondent agreed that he had not told the applicant he was ordering two carports, he did not concede that his conduct in ordering two carports from SSSM and having the applicant or his partner pay for them in the belief that he was ordering one carport for them was misleading and dishonest. He appeared to have convinced himself that it was appropriate for him to tell the applicant that the total cost was $3,500 for supplying ($2,000) and installing ($1,500) his double carport and to request that he pay this amount to SSSM, when SSSM were not entitled to the labour charge. He did not see anything wrong in spending $1,500 of the applicant’s money on a second carport for a totally unrelated job that the respondent was undertaking. The Tribunal was unimpressed by both the respondent’s conduct and his evidence.
The respondent also stated in this Response that if was given the material remaining at SSSM (carport 2), which he would collect himself, he would agree to the amount of $1,950 (being the amount already paid by the applicant) being taken from his outstanding invoices, the subject of his counter claim. This would leave an amount of $290 being claimed by the respondent as payable by the applicant. Before the end of the hearing the respondent abandoned this claim for the $290.
Having considered all of the evidence, and seen the parties given their evidence, the Tribunal is satisfied and finds that the respondent misled the applicant when he told him that SSSM required payment of $3,500 for the cost of the double carport. The Tribunal rejects the respondent’s claim that he required the applicant to pay $3,500 because the applicant had been behind in his payments and he was concerned that he would not be paid.
The Tribunal is satisfied and finds that the respondent intentionally did not disclose to the applicant that he was ordering two carports from SSSM, one of which was for a different client’s project in Lyneham. In doing so he deceived the applicant. His conduct was reprehensible.
The applicant now finds himself with a disassembled single carport at his property which he said he is happy to keep or dispose of as he sees fit, a new single carport which cost him $2,450 plus GST for parts and to erect it, and a double carport which he has paid for and is held at SSSM.
The Tribunal was, as stated above, unimpressed by the respondent’s evidence. It showed that he was dishonest in relation to this transaction. The agreement between the parties was that the respondent would supply and install the double carport for $3,500. The applicant paid the $3,500. The respondent did not install the carport which the applicant subsequently obtained from SSSM. The applicant has incurred a cost of $2,450 to have the carport erected. He provided a copy of the invoice from AT84 Pty Ltd who had carried out this work. The cost for the erection of the carport and supplying beams, joints and brackets was $2,450 plus GST of $245, totalling $2,695. The respondent is liable to pay damages of $2,695 for the costs incurred by the applicant in installing the single carport.
In relation to the double carport held at SSSM the Tribunal will make orders requiring the respondent to also pay the applicant $1,935.46 for the carport at SSSM. Upon payment the applicant is to provide SSSM with a copy of these orders and notify them that they are at liberty to release the material for this carport to the respondent. The respondent is to collect the carport from SSSM.
The Tribunal will also order that the applicant, as the owner of the single carport, is able to dispose of the dissembled single carport which the respondent returned to his property on 9 September 2017, as he sees fit.
Rent
The applicant originally claimed loss of rent for six months caused by the respondent’s failure to carry out the work with due care and skill which delayed the completion of the work at the applicant’s property, and hence the property being ready to be rented out. The claim was for the period of six months commencing at the start of June 2017 at $450 a week, $11,700.
The respondent said when he was undertaking the agreed work for the applicant the property was the applicant’s principal residence and he was not aware the property was to be used as a rental property. He added he did not understand how he was liable for any loss of rent.
The applicant said that from when they had the first discussions in May 2017 which led to the oral agreements he repeatedly made the respondent aware that he wanted the works finished as soon as possible as he wanted to rent the property out. He said when he terminated the agreement with the respondent in mid-June 2017 he was not in the position to complete the outstanding and defective works as he had, by then, gone over budget and he needed the works to be completed before he could rent out the property.
The applicant told the Tribunal that his partner had purchased a property which was due to settle on 14 July 2017 and that he then proposed to live in her property and rent out his property. He said he had arranged for a work colleague, Anne-Maree Hevey, to rent his property. He filed a Statutory Declaration[22] from Anne-Maree Hevey declared on 12 October 2017 in which she stated that, in early May 2017, she had agreed with the applicant to rent the property from 1 July 2017 for $420 a week. Ms Hevey did not sign a tenancy agreement. Ms Hevey stated that when her existing lease was coming to an end in June 2017 the applicant’s property was not in a state that she could readily or comfortably move into and they agreed to move the commencement date into July 2017. However, she had to return to Queensland towards the end of July 2017 and did not pursue renting the applicant’s property.
[22] Applicant’s 5 December 2017 documents at attachment 21
The applicant told the Tribunal that part of the agreement with Ms Hevey was that he and his partner would still be living in his property with her for the first two weeks of her tenancy. The Tribunal queried this arrangement and whether Ms Hevey would be agreeable to paying rent at $420 per week for these two weeks when the applicant and his partner were still living there.
The applicant said that he started looking for tenants to rent the property from July 2017 which was when the respondent was supposed to have finished the work, but the property was not ready for tenants until September. He advertised it on Gumtree at the start of September and was able to rent it at $450 per week from 20 October 2017. At the hearing the applicant reduced this claim from $11,700 to $6,720 (16 weeks at $420 per week being the weekly rent that Ms Hevey had agreed to pay) for the period from 1 July 2017 to 19 October 2017.
In October 2017 the applicant arranged for the Independent Property Group, Luton and Element Property Services[23] to provide rental appraisals for his property. Luton’s appraisal was $390 - $430 per week unfurnished and $460 - $500 a week furnished. The other two agencies’ rental appraisals were $450 per week. The applicant was able to obtain a tenant at $450 a week from 20 October 2017. The Tribunal is satisfied that the amount of weekly rent then sought by the applicant for the property was reasonable.
[23] Applicant’s 5 December 2017 documents – three appraisals in attachment 21
In any claim for damage the applicant has a duty to mitigate any loss claimed. The Tribunal notes that the applicant said when he terminated the agreement with the respondent he did not have funds available to complete the outstanding works. In these circumstances the applicant should bear some responsibility for the delay in completing the outstanding works when his claim includes rent for the period when the works were outstanding. While the electricity issues were fixed up on 12 July 2017, the yard levelling was not undertaken until 6 October 2017. The carport was erected on 10 October 2017. The property was tenanted 10 days later.
Having considered all of the evidence, the Tribunal accepts the applicant’s evidence that the property was ready for renting from September 2017, when he advertised it on Gumtree, notwithstanding that the outdoor works were not completed until October 2017. As the applicant intended living at the property until 14 July 2017 the Tribunal has determined that the period for calculating the applicant’s rent loss caused by the respondent’s defective work is from 15 July 2017 to 1 September 2017, a period of seven weeks. The Tribunal was not satisfied from the available evidence that the respondent’s defective work caused or contributed to the applicant not being able to rent the property from 2 September 2017 to 19 October 2017.
Based on the tenancy arrangement the applicant had with Ms Hevey the amount of compensation is calculated at $420 for seven weeks, $2,940, which the Tribunal has determined is to be equally borne by the applicant and the respondent. The Tribunal finds that the respondent is liable to pay the applicant $1,470 for three and a half weeks of the applicants’ loss of rent and the applicant is responsible for the balance.
Pain and suffering
The applicant did not provide any credible evidence in support of this claim. The Tribunal dismisses this claim.
Conclusion
For the above reasons the Tribunal will enter judgment for the applicant, against the respondent in the sum of $10,480.46 calculated as follows:
(a) Floor levelling $1,000.00
(b) Painting $ 275.00
(c) Laundry cabinet $1,500.00
(d) Electrical rectification $ 465.00
(e) Yard levelling $ 990.00
(f) Carport Erection $2,695.00
(g) Carport at SSSM $1,935.46
(h) Rent $1,470.00 $10,330.46
(i) Filing Fee[24] $ 150.00
$10,480.46
[24] Pursuant to section 48(2)(a)(i) of the ACAT Act
The Tribunal will make orders in relation to the payment of the judgment monies to the applicant and in relation to carport 2 which is still held by SSSM.
………………………………..
Presidential Member E Symons
FILE NUMBER: | XD 837/2017 |
PARTIES, APPELLANT: | Mirwais Sadat |
PARTIES, RESPONDENT: | Cvetko Taneski |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Presidential Member E Symons |
DATES OF HEARING: | 11 December 2017, 8 January 2018 |
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