Sears Enterprises Pty Ltd v Ross
[2014] QCAT 640
•24 November 2014
| CITATION: | Sears Enterprises Pty Ltd v Ross and anor [2014] QCAT 640 |
| PARTIES: | Sears Enterprises Pty Ltd (Applicant) |
| v | |
| Jamie Gregory Ross (First Respondent) Megabuild Oz Pty Ltd ABN 75163 275 474 (Second Respondent) |
| APPLICATION NUMBER: | MCDO206-14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 26 August 2014 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 24 November 2014 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. That the claim is dismissed. |
| CATCHWORDS: | Minor Civil dispute – minor debt – alleged painting services – unpaid invoice – breach of contract – proper named Respondent – whether sufficient evidence to support claim Queensland Civil and Administrative Tribunal Act 2009 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Mark Sears |
| RESPONDENT: | Mr Jamie Ross |
REASONS FOR DECISION
Mr Sears alleges that he was contracted to undertake painting works for Mr Ross. He states that he did painting works at two locations on the Gold Coast, issued invoices for $6,336.00 for those works, and has not been paid.
Mr Ross claims that he did not at any time enter into a contract with Mr Sears for any painting works at either of the locations identified by him. He states that Mr Sears may have performed painting works at ‘the Jellicoe Street property’ but that any works were performed for the Cullen Group, and if found that payment is required, that he is not responsible for such payment.
Jurisdiction
The tribunal has jurisdiction to hear and determine minor civil disputes – minor debt matters.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 11.
A minor civil application for a claim to recover a debt or liquidated demand of money must be made by a person to whom the debt is owed or money is payable.[2]
[2]Ibid s 12(4)(a).
In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute and may, if considered appropriate, to make an order dismissing the application.[3] The tribunal may make an order requiring a party to the proceeding to pay a stated amount to a stated person. [4]
[3]Ibid s 13(1).
[4]Ibid s 13(2)(a)(i).
Applicant’s evidence
Mr Sears claims he was engaged by Mr Ross to undertake painting works at 58 Chestnut Road, Mount Tamborine, which was Mr Ross’ residence, and at 33 Jellico Street, Loganlea.
Mr Sears said he provided Mr Ross with two invoices, one dated 20 January 2014 for $5,280.00 and a second invoice on 2 February 2014 in the sum of $1,056.00[5]. He said they related to the two painting jobs he did for Mr Ross.
[5]Attached to original claim filed 18 March 2014.
Mr Sears provided copies of the invoices. The first one dated 2 February 2014 for $1,056.00 was invoiced to Mega Build with reference to works at 33 Jellico Street, Loganlea. The second invoice was to Mr Ross personally, dated 20 January 2014 for $5,280.00, referenced to works at Mount Tamborine.
Mr Sears filed Submissions[6] with the tribunal with evidence attached. The evidence included statutory declarations, receipts and photographs.
[6]dated 12 May 2014.
Mr Sears stated that he did the painting works for Mr Ross at both locations on a ‘verbal request’. He said a verbal quote was given to Mr Ross and he accepted the quote and requested work commence. He said the work at Jellicoe Street was under $3,300.00 and therefore a contract for work was not required.
Mr Sears claimed that during 2013 he entered into two contracts to paint various units at different addresses, at the request of Mr Ross. He said that those projects were for substantial amounts, but do not form part of this claim as they have been paid. He said that after completing the project work he discovered that ‘Mr Ross and his company were not licensed with the QBCC’.
Mr Sears provided receipts from Bunnings Warehouse and Wattyl as evidence of the paint and materials he purchased for the works he performed for Mr Ross. Mr Sears provided photos of him painting at the Jellicoe property showing plaster-ceiling repairs and painting of those repairs.
Mr Sears provided a summary[7] of the calculations used in making his claim including the hours and paint and materials required for the works.
[7]Attached to documents marked ‘Exhibit 1’.
Mr Sears said he relied on the statutory declarations of another contractor, David Norwood and Joshua Sears, and an affidavit of David Norwood sworn on 5 August 2014[8].
[8]Exhibit 3.
Evidence of David Norwood
Mr Norwood declared a statutory declaration on 5 May 2014 stating that he was a plasterer who worked on the Gold Coast and Jamie Ross contacted him in April 2013 to repair plaster works at his residence at 15 Chestnut Road, Tamborine. He claims that at this time he recommended a painter to Mr Ross, Mr Sears and his son. He claims that when he returned to Mr Ross’ property later he noticed that he saw ‘considerable painting works performed by Mr Sears’. He claims ‘Mr Ross showed him the interior and exterior of the entertainment areas’, and that he was ‘happy with the work’.
Mr Norwood declared that he had ‘worked with Mr Sears on numerous commercial and residential projects over the past 20 years’ and that he was a ‘good tradesman’.
Mr Norwood swore an affidavit on 5 August 2014 providing further evidence to the tribunal regarding the painting works.
Mr Norwood stated that he witnesses Mr Ross request Mr Sears undertake painting works to ‘the ceiling cornices and the cupboard area in the kitchen’ at the Jellicoe Street property. He claims that Mr Ross said to him and Mr Sears that he would ‘fix payment up later...I’ll make it up on other contracts’.
Mr Norwood said Mr Ross asked him to do some work at his home at Mt Tamborine in his ‘Man cave, which needed plastering’.
Mr Norwood said he arranged for his workers to work on the project and that Mr Ross paid the workers directly. He claims that it was agreed that any cost of materials would be paid by Mr Ross and ‘worked out like the job at Jellicoe Street’. Mr Norwood said that Mr Ross has not paid for the materials nor given him any additional money from contracts.
Evidence of Joshua Sears
Mr Joshua Sears declared a statutory declaration on 5 May 2014 and stated that he worked with his father’s company Sears Enterprises Pty Ltd. He said ‘in April 2013 he worked at the residence of Jamie Ross at Tamborine’. He claimed ‘work was carried out on his converted garage, ...the work completed was acid washing of concrete floor and applying two coats of grey paving paint, cut and roll two coats to all walls’.
Mr Joshua Sears said he helped his father ‘spray two coats of flat acrylic to all ceilings, cut and roll exterior low sheen to exterior cement sheet panels’.
Respondent’s evidence
Mr Ross filed a response on 12 June 2014 seeking orders that the claim be dismissed. He filed submissions[9] with the tribunal prior to filing his response.
[9]Dated 5 May 2014 and filed 12 May 2014.
Mr Ross filed a copy of his Response[10] with evidence attached including statements, statutory declarations and photos.
[10]Exhibit 2.
He said that he did not enter into a contract with Mr Sears to paint his shed, there was never a verbal price or quote or any mention of charging him to paint his shed. He said Mr Sears did undertake some ‘painting works at his property of his own volition, to thank me for the work I had given him as a contract painter on the projects for the Cullen Group’.
Mr Ross claims that he did not request the works to be performed regarding the invoice for Jellicoe Street, and that he was a site supervisor working for the Cullen Group. He claims that at the time Mr Sears attended the site at Jellicoe Street he did not have authority to request contract works and that any work on that site was only done at the request from the Cullen Group.
Mr Ross alleged that when he went to site at Jellicoe Street, he had engaged Mr Norwood, a plasterer to repair the ceiling due to a leak in the roof. He said that Mr Sears was there at the time and was introduced to him. He said that he was introduced to him on the hope of future work. Mr Ross said he told Mr Sears he had a project starting in the near future and that it would be good to ‘have him on board’. Mr Ross said that Mr Sears saw the ceiling repairs being done by his friend, Mr Norwood and that Mr Sears ‘offered to paint the repairs off his own back, there was no mention of a charge and he went ahead and painted the small area of ceiling’.
Mr Ross said that he did not request Mr Sears paint walls to the cupboard area in the second bedroom and he was not sure how he came to do this. He said the plasterer, Dave Norwood was repairing defects in his plastering works at the time and he believed that Mr Sears might have painted the repairs Mr Norwood was doing to assist Mr Norwood and ‘avoid a charge back from the Cullen Group for the painting of the repairs’.
Mr Ross claims that if Mr Sears did works at Jellicoe Street that he believes he should be paid, he should contact the Cullen Group.
Mr Ross stated that he understood that when Mr Sears painted his shed that there was ‘no contract, quote or agreed price and payment was never mentioned’. He said that Mr Sears offered to paint his shed ‘to thank him for the work he had given him as a contract painter on some of his jobs’. Mr Ross said the invoice Mr Sears issued was in fact incorrect as there was minimal painting done to the exterior and the inside was painted with paint that Mr Sears told him was ‘left over from previous jobs’.
Mr Ross said that the painting of the shed floor was not completed. He said that Mr Sears unplugged his freezer to paint he floor and forgot to turn it back on. He said that the contents of his freezer thawed out and he lost approximately $2,000 worth of food including crayfish. He said that Mr Sears painted around a piece of moveable furniture and left a patch on the floor that was unpainted. He said because of the fact the floor was painted as an act of goodwill, he did not mind that it was not finished and did not raise any issue about the lost frozen foods.
Mr Ross believes that the two invoices subject to this dispute were raised in retaliation after another case between the parties regarding other payments was dismissed in Southport in April 2014. Mr Ross stated that if the works were allegedly performed there is no reasonable excuse provided by Mr Sears as to why he has waited between 6 – 12 months to issue the invoices after the works were allegedly performed. He said it was Mr Sears practice to always issue invoices immediately after works were completed.
Evidence of Cameron Roberts
Mr Roberts declared a statutory declaration on 11 June 2014. He alleges that he is a carpenter and worked for Mr Ross. He stated that he worked on the Jellicoe Street site when Mr Sears was there. He said that he was the person who cut out the ceiling that was damaged by the leak for Mr Norwood to replaster. He said Mr Sears painted the ceiling and was doing so to ‘gain favour with Jamie (Ross) to obtain future work’. He claims that he ‘never heard any mention of a price’ and could not understand why there ‘would have been a price as there were already other contract painters on site’.
Mr Roberts said he was the carpenter who worked on the shed at Jamie Ross’ house at Tamborine. He said that when he started work on the renovations that the ‘whole exterior of the shed had already been painted and the walls and ceiling of the office had been painted’.
Mr Roberts stated that as far as he can verify and ‘to the best of his knowledge, the painting works completed by Marcus Sears after the renovations, were completed as a favour to Jamie, for work he had given to Marcus on projects for the Cullen Group’.
Evidence of Margaret Ross
Mrs Ross declared a statutory declaration on 11 June 2014. Mrs Ross is Mr Ross’ mother. She said she was at the Tamborine house while her son was overseas and was present during the painting works. She said that when ‘Mark the painter came to paint the floor of the shed and office Jamie had advised’ her that ‘there was no need to pay him because he was doing it for nothing as a contra for all the work Jamie had given him’.
Mrs Ross said that when Mark the painter was there ‘he painted around the freezer and desk in the office; left the freezer unplugged’ and ‘left all the furniture including the billiard table outside in the weather’.
Evidence of Anthony Coleman
Mr Coleman declared a statutory declaration on 11 June 2014 stating he was a carpenter and he worked on Mr Ross’ shed. He said ‘Mark the painter turned up at Jamie’s house and said he will give us a hand. I thought he was just doing it to be nice or say thanks for the work that Jamie had been getting for him on other sites and have a beer’.
Evidence of Carly Cullen
Ms Cullen declared a statutory declaration on 12 June 2014. She claims that she met Mr Sears when ‘stopped in to have a look at the internal of the shed’ and that he stated to her ‘he was doing off his own back for Jamie to thank him for getting him work’. She said he told her ‘he used the paint he already had left over from other jobs’.
Ms Cullen alleges she arrived at the Tamborine property and that the job was ‘¾ completed undercoat...she had a beer with him and offered him to take a couple of ... painted crayfish and a couple of beers home as a kind gesture… knowing we weren’t being charged’.
Ms Cullen claims that Mr Sears ‘came to the property to sort out some paperwork and to have a contract signed for work that Mega Build was commissioning him to complete for Cullen Group’. She claimed at this time ‘Mr Ross and Mr Coleman were having a few beers and doing some extra painting internally in the shed’ when Mr Sears joined them for beers and without asking ‘picked up a roller and proceeded to paint the three external panels’. She stated that ‘at no time was there any mention of a price or charges and he made it clear the work he did was simply a thank you for James getting him the ongoing work’.
Evidence of Mr Joel McKay
Mr McKay declared a statutory declaration on 12 June 2014. He states that he is a painter and that he painted the interior and exterior of the property at 58 Chestnut Road Tamborine with the project completed in December 2012.
Findings
I find that I place little weight on the statutory declarations and evidence filed by the parties of those witnesses that were not available for cross-examination by the parties.
Most of the statutory declarations were filed on behalf of friends, family or employees of the parties. The statutory declarations were not truly third party independent witnesses. The content of those statements did not assist me in determining this case as they contained little evidence about the negotiations between the parties surrounding the painting works.
Was there a contract between the parties relating to the Jellicoe Street works?
I find that as Mr Ross contends, that one invoice, relating to works at Jellicoe Street, if proven to be required to be paid, that Mr Ross is not the proper named Respondent and the Cullen Group may be. I agree with Mr Ross that any work, if requested and performed at Jellicoe Street, would be a liability of the Cullen Group. There was no evidence presented to the tribunal from Mr Sears that the Cullen Group or Mr Ross employed him at the Jellicoe Street site to undertake any painting works. There was no quotation or work order raised by the Cullen Group and any claim against them may fail due to insufficient evidence.
Mr Ross was an employee of the Cullen Group, employed to supervise the building site. He was not authorised to engage contractors to work on that site. If Mr Sears has a claim for alleged painting works performed at this site, Mr Ross is not liable and is not the proper named respondent to such a claim.
Was there a contract or agreement between the parties relating to the Mount Tamborine Works?
I find it impossible to reconcile the receipts for paint and material provided to the tribunal by Mr Sears as connected to the painting works undertaken for Mr Ross at his residence. Invoices dated May, June and July 2013 from Bristol[11] and Bunnings do not prove the materials were used at Mr Ross’ property. In the absence of any written agreement or quotation, it is impossible to reconcile if a contract existed between the parties, it might be that both parties held their views on how the works were to be performed. Mr Ross believed that price was not mentioned, there was no quote or agreement in place and that the works were being done at his home as a ‘gesture of good will’.
[11]Attached to documents marked ‘Exhibit 1’.
I find that the photographic evidence submitted by Mr Ross does prove that whatever painting works were undertaken by Mr Sears at his property at Tamborine, they were not completed.
The evidence provided by Mr Sears of his witness Mr Norwood in fact supports a finding that Mr Sears agreed to undertake painting works on the basis that payment for those works would not be actually paid by Mr Ross, but by payment made up by ‘giving Mr Sears other contract work’.
I find from the evidence there was never any agreement for painting works at a price, or pursuant to any quote. I accept the evidence of Mr Ross that the painting of his shed at his residence was on the basis that Mr Sears was given contract work, and that the act of painting the shed was a gesture of good faith on the basis that Mr Sears would get more work from Mr Ross. The evidence of Mr Norwood confirms that proposition.
Mr Sears is the applicant and bears the greater onus of providing the evidence to the tribunal that would satisfy the tribunal making an order in his favour.
I find from the evidence provided to the tribunal that I am unable to make a finding that there was an agreement in place between the parties for Mr Sears to undertake painting works for Mr Ross at a cost. There is no evidence that there was a quotation or any agreed price for the painting works. I accept that Mr Sears undertook the painting works on the assumption he would continue to get work from Mr Ross, and when no further contract work was awarded to him, he raised the invoices, for work allegedly performed in July 2013, and seeking payment for that work in January 2014.
Mr Sears did not provide any explanation for the long delay in issuing the invoices and I find that it is more than likely that after he was not awarded any further contract work, he raised the invoices and demanded to be paid.
In cases like this, it is a warning to parties, that unless contracts or agreements are reduced to writing, it can be extremely difficult for a tribunal to determine what the intention of the parties were and on what terms and conditions a party may undertake particular work or provide services and the basis of remuneration. In this case, there is little evidence of the party’s alleged agreement for the painting of the shed. There was little evidence including any conduct of the parties, or any other evidence, that would have assisted the tribunal in determining the dispute and finding that an agreement was in place for Mr Sears to undertake works for Mr Ross at a price.
In the circumstances, for the reasons I have given, I find that Mr Sears has not provided the evidence to persuade me to make the order that he seeks in his application. The order I propose to make therefore is as follows:
1. The claim is dismissed.
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