Scheerer v McNamara
[2012] QCAT 358
| CITATION: | Scheerer v McNamara [2012] QCAT 358 |
| PARTIES: | Nigel Scheerer |
| v | |
| Glynn McNamara |
| APPLICATION NUMBER: | MCDO2294-11 |
| MATTER TYPE: | Other minor civil disputes matters |
| HEARING DATE: | 29 March 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Paul Favell, Member |
| DELIVERED ON: | 3 July 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The respondent pay the applicant $1,850.00 by 4pm 31 July 2012. |
| CATCHWORDS: | Minor Civil Dispute – whether contract existed – if so, terms of contract – whether quantum meruit |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Nigel Scheerer and Ms Helen Scheerer (by phone) – for the Applicant |
| RESPONDENT: | Mr Glynn McNamara - for the Respondent |
REASONS FOR DECISION
This is a decision in Brisbane Claim 2294 of 2011. The Applicant is Mr Nigel Scheerer, and the Respondent is Mr Glynn McNamara. This Claim is heard in the Minor Civil Dispute jurisdiction of QCAT.
The Applicant Mr Nigel Scheerer was given leave at an earlier stage to appear by telephone, and he did so. He gave evidence on oath, as did his wife Helen Scheerer. Mr Glynn McNamara appeared in person and also gave evidence on oath.
The claim was for payment of the sum of $4,080, together with the filing fee of $95 and service fee of $45. The nature of the claim is articulated in the application as follows:
“At all relevant times, the Respondent owned, managed or was employed by Whitaker’s Retravision in Pittsworth.
In or about September 2009, the Respondent asked me to construct three leadlight window panels for him, in return for which he would pay for the materials used to create the windows and give me a computer and software from Whitaker’s Retravision.
The Respondent paid me $1000 for materials. I then spent $953 on the materials and 204 hours constructing the windows, and delivered the completed windows to the Respondent.
The Respondent reneged on the deal to give me a computer and software. On 16 March 2011 I rendered an account to the Respondent for $4,080, being 204 hours at $20 per hour. (A copy of my account is attached.)
The Respondent has refused to pay all or any part of my account.”
That claim was amended during the course of the hearing so as to be a claim for $1,850. That sum was calculated on the basis that it was the value of a computer and software, which is claimed by the Applicant to be the consideration agreed upon for the work to be carried out on the leadlight windows. For the reasons I set out herein I am satisfied there was a contract between the applicant and the respondent for the work done.
The Respondent denies the claim on a number of bases, one of which is that there was no agreement in writing, and that he was, as he put it during questioning, uncertain as to what he said.
In the Response, when asking the Tribunal to make orders, he said:
“I would seek an order from the Tribunal that no moneys be paid, as I paid for all materials that were agreed to be paid for Mr Scheerer told me lead lighting was his hobby and he would happily make me two windows if I agreed to pay him for what materials he required to buy to make the windows.
At no time was I given any bill or indication that there would be extra charges, and when asked for money for materials, I paid those costs immediately in cash.”
The reasons he gave for seeking such orders are:
“Mr Sheere only decided to make these allegations after the company I am the manager of took a small debt claim out to recover money owed to that company by Mr Scheerer.
Mr Sheere made the panels for the windows in 2009 and has produced an account in March 2011. Goods were never offered in lieu of any services of any kind by myself, Whitaker’s Electrical or any staff member of that firm.
Mr Sheere requested an extension of time to pay his account with Whitaker’s Electrical on several occasions and it wasn’t until he moved to Victoria that action was taken against him to recoup money owed.”
Mr Scheerer in his evidence said that he and his wife went into the store, which he thought was owned by Mr McNamara, in order to make inquiries about air-conditioning. As a result of that visit, Mr McNamara came to their home in order to measure the area to be air-conditioned. He said that when Mr McNamara attended, he was in the front lawn and informed Mr McNamara that his wife was around the back.
When Mr McNamara was leaving, he said to the Applicant, “Love your lead lights. Would you be interested in doing some for me?” The Applicant said that he replied, “Okay, I suppose so.”
[10] He explained that currently he was renovating a 1905 house and completing his Masters and then going on to do a PhD. He explained that that involvement in both those projects amounted to a lot of work. He said that the works that he had done with lead lights previously had only been done for himself. He said that at that stage Mr McNamara asked whether there could be a trade-off for an air-conditioner for the work done.
[11] Later, Mr McNamara rang and asked if the Applicant would mind if he brought his partner round, “say, at 8.00, to look at the lead lights”. That was agreed to, and Mr McNamara and his partner attended.
[12] At some stage there was a discussion about the type of material which would be used in lead lights, and the relative expense of various types of glass.
[13] Subsequently, Mr Scheerer and his wife were invited by Mr McNamara to an old house that they had moved in Southbrook. They were invited to that house (church) on a Sunday and they attended. When they did, they saw what Mr Scheerer described as magnificent lead lights in an end wall. He noted that Mr McNamara had built in staircases and put in a staircase and put rooms on a number of levels.
[14] There was discussion about putting lead lights on each panel on each level. There was some further discussion about fanlights and the availability of those lights at Griffith Street Renovations.
[15] Mr Scheerer attended at that establishment and identified some fanlights, which he asked to be put on hold. Later, Mr McNamara bought those lights, and after his father had stripped them down, they were brought to Mr Scheerer.
[16] At some stage Mr Scheerer had picked out various types of glass. He explained that he had a discussion with Mr McNamara about the expense of red and other coloured glass. He also had a discussion about wastage.
[17] He says that, some two days later, Mr McNamara and his partner came back and identified the type of glass that they wanted used in the making of the leadlight. Mr Scheerer told Mr McNamara that materials would be about $800.
[18] There then was discussion about some panels and how the windows would be temporarily constructed until they were approved. At that stage there was also a discussion about a mitre window, which Mr Scheerer said he would have liked to have worked on.
[19] He said he told Mr McNamara that materials for that would be about $200, and he drew up a plan concerning the windows. When he had completed that, he took the plan with a letter and stuck it on Mr McNamara’s shop window.
[20] Subsequently, Mr Scheerer was rung on a Sunday and was told to go ahead with that window. At that stage Mr Scheerer says that he had a discussion with Mr McNamara, where he said that they did not need the air-conditioner any more, but rather, needed a computer and software.
[21] He said that it was agreed that the exchange for the work on the windows would be the provision of a computer and software. He said that when he was doing work on the window, he was asked by Mr McNamara about the software, and that software was subsequently ordered.
[22] He was then told by an employee of Mr McNamara that the software which was ordered in was not compatible with the computer, and at some stage he said Mr McNamara told him, “he could not afford it, anyway.”
[23] He said that when Mr McNamara went to Kuala Lumpur, he (Mr Scheerer) looked at goods to the value of the computer and software. There was then apparently some exchange of emails.
[24] Mr Scheerer gave evidence that he told Mr McNamara that so far as the value of the computer and software was concerned it was all resolved.
[25] He said that at some stage he was told that Mr McNamara did not own the store. Nevertheless there was an agreement with Whitakers in which he agreed to pay $1,800.00 for goods. There was some dispute about that and whether he should have been liable to pay Whitakers but that has now been resolved and the amount has now been paid.
[26] Mr Scheerer gave evidence that lead lighting had never been a hobby, rather he did it to fulfil the requirements of his renovated and moved house. He said that he would not have worked for approximately 200 hours for no reimbursement. He gave the evidence that lead light practitioners charge approximately $40.00/hour. But in an endeavour to be more than reasonable, he sent Mr McNamara an invoice which claimed $20/hour.
[27] He gave evidence that on his research the value of the computer and software which he had agreed to return for the work was $1,850.00. That value is not the subject of any evidence to the contrary.
[28] Mr McNamara gave evidence that he was a director and manager of Whitakers.
[29] He said he had admired the lead lights when he was taken to the applicant’s house and after some discussion he said that he was told by Mr Scheerer that he would be happy to do the lead lights for the cost of the materials as it was his hobby. He said that he replied, “maybe we can work something out.” He thought that the cost of the materials would be between $500.00-$600.00.
[30] Three to four months later the applicant opened a credit account with the store and requested to book up some printer cartridges. To ensure his credit he told the respondent that he had a bond with the Council which could later be used to pay for any credit. The respondent rang the ex-Mayor and confirmed that to be so. The respondent said that after he moved he asked the applicant to pay for the amounts that had been rung up and at that stage he also gave him a sum of $800.00 and later a sum of $200.00. Those amounts of $800.00 and $200.00 can be seen reflected in Tax Invoice 01/2011 on 16 March 2011 which recounted them as the costs of all materials for two staircase window panels and the total cost of all materials to complete “a Church mitre window”. That initial claim was said to be in lieu of goods promised 204 hours at $20.00/hour at a total of $4,080.00.
[31] In response to that invoice Mr McNamara instructed his solicitors Bernays Lawyers to send a letter to the solicitors for Mr Scheerer. That letter is Exhibit 2. The contents of that letter I am told by Mr McNamara reflect the agreement and, in part, the history of the relationship between the applicant and the respondent.
[32] Exhibit 1 is the response to Exhibit 2 from the solicitors for the applicant. It reflects in part the evidence given by the applicant.
[33] Exhibit 3 is an email from the applicant to his solicitor, the contents of which he tells me are his recollection in May of 2011 of what had occurred. Mr Scheerer responded to the evidence given by Mr McNamara and made some points about what he did and did not receive from Whitakers and how he came to get credit at the store. He repeated that making lead lights was not a hobby as his time was consumed by doing a PhD and renovating the house. He said however that doing the third window became a challenge for him and he did want to do it. He told Mr McNamara that the materials would be $200.00.
[34] At all times he thought he was getting a computer and software and to that end Mr McNamara got the software in but then found out it was not compatible. He says that points to there being an agreement in the first place. In response, Mr McNamara said was because of an order being placed.
[35] Mr Scheerer said that in the end he did not buy the computer from Mr McNamara or Whitakers but rather from Harvey Norman. He did however buy a printer from Whitakers.
[36] Mrs Helen Scheerer gave evidence. She said that she had decided some time in 2009 to get a price on air conditioning. When she was asked for a price she was told that the store would have to send someone down to assess the area to be air-conditioned. She said that Mr McNamara came and he gave a rough idea of costs and she and her husband decided that was more than they could afford. Whilst he was there Mr McNamara admired the lead lighting. He asked “would your husband do the same for me?” and said maybe he could do the lead lights in exchange for the air-conditioning. She said that she showed Mr McNamara through the house and then he spoke to her husband. Later, she said, Mr McNamara brought his partner back to look at the lead lighting. When she came through there was a discussion about glass and the cost of glass. She said that Mr McNamara asked them to their house that weekend.
[37] She said that they were uneasy about going ahead with the air-conditioning and told Mr McNamara that they could not do so. She said that Nigel told Mr McNamara that they could do the same deal with the computer. In response she said Mr McNamara said “yes, that would be fine”. She said that when they went to get the computer, Mr McNamara told them that he could not afford it and she was upset. There was some discussion then had in the hearing between Mr McNamara and Mrs Scheerer. During that discussion, Mr McNamara said he may have said that Mr Scheerer said he would have done the work in return for the air-conditioning. In response, Mrs Scheerer said “you said ‘maybe we can work something out in exchange for air-con’”. She then went on to say to Mr McNamara during the course of the hearing, “when we decided not to go ahead with the air-conditioning, we asked for the same deal with the computer.”
[38] The above recitation of my finding of facts was taken from my recollection at the time and from notes taken by me. I made a request to have a transcript of part of the hearing, however in April 2012 I was informed that the audio of the hearing was incomplete and all of the transcript of the audio was not available.
[39] On my hearing of the evidence and the content of the evidence given, I find that there was an agreement to do the lead lighting in return for the cost of air-conditioning. That agreement was subsequently varied when the applicant decided it would be better to have a computer and some software instead. I am satisfied that Mr and Mrs Scheerer have a clear recollection of what occurred and I am satisfied that the respondent was unclear as to what he said during the various conversations. The evidence of Mr and Mrs Scheerer supports the finding of the contract between the parties.
[40] I am satisfied that the value of the consideration is $1,850.00 which I am satisfied is well less than what would be an appropriate quantum meruit figure.
[41] Accordingly, the order shall be the respondent pay the applicant $1,850.00 by 4pm 31 July 2012.
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