Sheds Shade and Turf Pty Ltd v Ozcro Civil and Construction Pty Ltd (Civil Dispute)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SHEDS SHADE AND TURF PTY LTD V OZCRO CIVIL AND CONSTRUCTION PTY LTD (Civil Dispute) [2016] ACAT 42

XD 46 /2016
Catchwords: CIVIL DISPUTE – contract dispute – supply and installation of putting green – whether product was the same or similar to display product

Subordinate
Legislation cited: Court Procedure Rules 2006 r 2000, 2001, 2002, 2004

Tribunal: President G McCarthy

Date of Orders:  13 May 2016
Date of Reasons for Decision:         13 May 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 46/2016
BETWEEN:
SHEDS SHADE AND TURF PTY LTD
Applicant

AND:
OZCRO CIVIL AND CONSTRUCTION PTY LTD
Respondent

TRIBUNAL: President G McCarthy

DATE:13 May 2016
ORDER

The Tribunal Orders that:

The respondent within 28 days pay the applicant $1,917.19 comprised of the following amounts:
(a)$1,748 for the balance owing under the contract.
(b)$136 for the filing fee.
(c)$16.53 for the search fee.
(d)$16.66 interest.

…………………………
President G McCarthy

REASONS FOR DECISION

The applicant carries on a business that includes the supply and installation of synthetic turf golf putting greens. In late September or early October 2015, Mr Anthony Brucic, who is the director of the respondent, came to the applicant’s premises and inquired about the supply and installation of a golf putting green at his home.
A director of the applicant’s business, Mr Phillip Nash, showed Mr Brucic a display putting green. I was told in evidence, and accept, that the display had been installed approximately 10-12 years earlier. I am satisfied that on inquiry from Mr Brucic, Mr Nash explained that the artificial turf on the display green was no longer available but he could provide a similar turf to that on display. Mr Nash gave evidence that he provided Mr Brucic with a sample of the turf he could provide, being a product known as Super County 9mm.
Mr Brucic denies receiving a sample, and contends that he simply trusted Mr Nash’s assurance that the turf he could provide was materially the same as that on the display putting green.
Either way, Mr Brucic asked Mr Nash to come to his home in order to provide a quote for the supply and installation of the putting green, less installation of the substrate on which the turf would be laid. The exclusion was because Mr Brucic intended to install the substrate himself.
On 8 October, 2015, Mr Nash came to Mr Brucic’s home and conducted a site measure for the purpose of providing a quote. Mr Nash gave evidence that he left a sample of the synthetic turf with Mr Brucic. Again, Mr Brucic denied receiving a sample.
On 9 October 2015, Mr Nash supplied a quote for the supply and installation of the putting green. The quote listed the parts and labour to be provided for a total sum of $2,914. The quote described the synthetic turf as Super County 9mm. Mr Brucic accepted the quote and paid the requested 40% deposit of $1,166 payable on acceptance of the quote.
Mr Nash subcontracted the installation of the turf to Mr Simon Minney who carries on a business known as ‘i dig landscaping’.
Mr Minney went to the applicant’s warehouse where he cut the necessary amount of turf to fulfil the work order that Mr Nash had provided him. There is no dispute, and I find, that Mr Minney chose Super County 9mm artificial turf per the description of the turf on the work order. That description is consistent with the description of the turf on the quote given to Mr Brucic.
Mr Minney went to Mr Brucic’s home on 6 November 2015 to install the turf. He states he arrived at 7:30am. Mr Brucic says he was somewhat surprised that the installation was occurring that day due to recent rain, but accepts that arrangements were made to install the turf on 6 November 2015 and that he was expecting Mr Minney that morning to do so.
Mr Minney stated that he and his men first made some small changes to the substrate including some repacking using Mr Brucic’s compactor and installing a mound to provide a little more complexity for the putting green. Mr Minney did this work without further charge, and there is no complaint from Mr Brucic about the installation of the turf.
Mr Brucic explained that at about 10:30am he needed to leave in order to take his son to a golf course. Mr Minney gave evidence, and Mr Brucic accepts, that Mr Brucic saw the turf fully rolled out and installers “cutting it in” when he left for the golf course.
Mr Minney discussed the installation with Mr Brucic as the work progressed. Mr Minney stated it was common for owners to ask questions as an installation proceeds, and that Mr Brucic did so. However, Mr Minney does not recall any questions or queries about whether the turf they were laying was the right product. He also stated that if a customer raised concerns that the wrong product was being laid, he would discuss the issue and contact Mr Nash if he had concerns that the work order was not correct. He did not have such concerns on this occasion.
Mr Brucic gave evidence that he did raise his concerns, but did not ask Mr Minney to stop work because he was unsure whether it was the incorrect product.
On Monday, 9 November 2015, Mr Brucic went to the applicant’s shop and queried the installation. Mr Nash recalls Mr Brucic expressing his concerns that the surface was “lumpy”, and that the ball bounced or lifted a bit when rolling across the turf. There was discussion about how the installation had been finished, whether sufficient sand had been swept into the turf and whether flaws might exist in the substrate. Mr Nash does not recall any query that Mr Minney had installed the wrong product.
Mr Nash stated that in response to Mr Brucic’s concerns, he contacted Mr Minney and requested he return to Mr Brucic’s home to check the installation, particularly whether sufficient sand had been swept into the turf.
On 12 November 2015, Mr Nash telephone Mr Brucic to explain, as I understand it, that arrangements had been made for an installer to check the level of sand that had been installed in the turf and to top it up if necessary. Mr Brucic explained that he was away from his home and would not be back until 17 November 2015. Mr Brucic wanted the rectification work to be done after he returned.
As events turned out, it appears that an installer came to Mr Brucic’s house in his absence and topped up the sand in the turf. Understandably, Mr Brucic was angry to discover that a tradesman had been into his private backyard in his absence and without permission to add more sand, however worthy the tradesman’s intentions might have been.
This event was unfortunate, but I do not accept that any responsibility for it lies with Mr Nash. He gave evidence, and I accept, that he told the installers that Mr Brucic would be overseas until 17 November 2015 and that any correction of the installation would have to wait until after he returned. It is not Mr Nash’s fault that that instruction was not followed.

Consideration of the issues

The applicant’s case is simple. As Mr Nash states, the applicant contracted with the respondent to install Super County 9mm synthetic turf at the respondent’s home in accordance with the quote that was provided and accepted. The applicant installed Super County 9mm turf, per the quote. There is no complaint about the installation, and the applicant should be paid for the supply and installation per the contract.
The respondent’s case is similarly simple. Mr Brucic contends that he trusted Mr Nash to provide turf that was the same or similar to that shown on the display green, but that the turf provided was not the same or similar to that he was shown and his deposit should therefore be refunded.
For several reasons, I am not persuaded that the respondent should be excused from his obligation under the contract to pay the applicant for the product supplied and the work done.
The right product
This is not a case where the respondent contracted to buy a specifically stated product, or even requested a stated product, and then received a different product. By his acceptance of the quote, the respondent contracted to buy Super County 9mm synthetic turf, and that’s what he got. Unless the product was in some way defective or deficient, or did not accord with a representation that Mr Nash made about the product that caused the respondent to enter into the contract, I see no reason why the respondent should not be held to the contract.
For the reasons discussed below, I am not persuaded that the product was defective or deficient or that Mr Nash said anything about the product that was not true.
The expected product
Mr Brucic accepts that on enquiring about the display putting green, he was told that the applicant no longer used that supplier. He contends however that Mr Nash said that the product he could supply would be the same as that on the display green. Mr Brucic contends he relied on Mr Nash’s representation that the product would be the same as that on the display green when deciding to purchase the product.
The respondent’s case therefore depends on his unfulfilled expectation that he would receive an unknown product, but a product that would be the same or at least similar to that on the display putting green. But what exactly was the deficiency or difference?
There is no suggestion, and sensibly so, that the Super County turf was inferior to that on display, especially where the display turf was 10-12 years old. Mr Brucic makes no complaint about the quality of the Super County 9mm turf as a product, and does not dispute the claim from its manufacturer that:
Grasslands Super County is a product that is used for putting greens throughout Australia and the world. It is a KDK yarn which makes it far better than a fibrillated yarn to putt on, this means that you will get a true ball roll.
Mr Brucic’s complaints are twofold. First, he complains that the Super County turf did not “look like” that on the display green. He complains that the fibres were coarser than those on the display green that had “fine strands”. Secondly, and perhaps in connection with the fibres, he complains that a golf ball did not behave on the Super County 9mm turf in the same way that it behaved on the display putting green.
I regard the first complaint as entirely lacking in substance. A customer would have much more cause for complaint if newly laid turf looked the same, or worse ‘was’ the same, as turf that had been laid 10 – 12 years previously. As Mr Nash noted, over time the fibres of synthetic turf flatten out. Fair wear and tear inevitably deteriorates the quality of the turf. A customer would reasonably expect new turf to ‘look different’ from a 10-12 year old product. Regarding the fibres, I am not persuaded that the fibres on the display green were different from those used in Super County turf in circumstances where turf flattens and deteriorates over time and where there was no evidence about the fibres used on the display green to permit a comparison.
Regarding the second complaint, Mr Nash agrees that Mr Brucic expressed concern on 9 November 2015 that the turf appeared lumpy and that a golf ball had a tendency to skip and bounce across the new turf, rather than (I presume) roll smoothly across the surface as it did on the display green. For several reasons, I am not persuaded that that difference entitled the respondent to reject the product.
(a)First, there is no evidence that Mr Nash made any representation about how a golf ball would behave when rolling across the new turf.
(b)Secondly, the different behaviour does not amount to saying that the wrong product been installed.
(c)Thirdly, these features do not demonstrate that the product was defective or deficient. It could equally be said that these features are consistent with a quality product because skips and bounces can occur on natural grass depending on the nature and cut of the grass.
(d)Fourthly, in response to Mr Brucic’s concerns, Mr Nash arranged for the installer to return and correct these features by sweeping in more sand. There is no evidence to suggest that the turf continued to display these features after the installer had returned and applied more sand.
Acceptance of the product
Mr Brucic had several opportunities to express his concerns about whether the wrong product was being or had been installed, but did not do so until several weeks after the turf was laid.
The first opportunity arose when Mr Nash showed or gave Mr Brucic a sample of the Super County turf in the shop, and the second when Mr Nash left a sample at Mr Brucic’s house after coming to do the site measure.
Mr Brucic denies being given a sample of the turf, and claims he simply trusted Mr Nash to provide turf that was the same or similar to that on display. I am not persuaded by Mr Brucic’s denial that Mr Nash did not provide the samples. It is illogical that a person in the business of supplying and installing synthetic putting greens would not have samples of the product to give to potential customers in the same way that persons in the business of laying floor coverings, providing window treatments or selling paint have and provide samples of their products to show their prospective customers.
However, even if samples were not provided (which I doubt), Mr Brucic was present when Mr Minney’s tradesmen rolled out the new turf. It was on full display, with the tradesmen doing the final stages of cutting it in, when Mr Brucic left his home at around 10:30am.
Mr Minney gave evidence of his discussions with Mr Brucic as the turf was laid out but cannot recall any query about whether the turf was the right product, meaning the product that had been ordered. I accept that there might have been discussion about the turf having a different appearance, which is hardly surprising when the comparison was between new turf that had not been finished with sand and turf finished with sand in a display green that had been laid 10 – 12 years earlier.
Notwithstanding the difference in appearance, there is no suggestion that Mr Brucic requested Mr Minney to stop laying the turf. Mr Brucic said he did not do so because he was unsure about whether it was the right product and needed to leave with his son who was teeing off at a golf course at 11am. Even if that were so, Mr Brucic had many days after the product was installed to consider more carefully whether he thought the right product had been installed.
On 9 November 2015, he expressed concern about the performance of the turf to Mr Nash, but Mr Nash has no recollection of a claim that the wrong product had been installed.
On 12 November 2015, Mr Nash rang Mr Brucic to inform him that the installers would return to install more sand. Mr Brucic asked that this not occur until after Mr Brucic returned from a holiday. It is illogical Mr Brucic would be discussing a mutually convenient time to correct the sand levels in the turf if his real concern was that the wrong product had been laid.
This chronology persuades me that Mr Brucic’s concern was with the performance of the turf, not that the wrong product had been installed.
A quality product
Mr Brucic gave evidence that the putting green was for his son. He wanted an “elite type” putting green for players. He said that the green:
needed to be realistic as this was to be used for practices purposes. This was not to be used as a muck about putting green. I wanted it to be professional and price was no object.
Mr Brucic then contended that he had a putt on the display green and that it was what he had in mind. Again, I am unpersuaded. In my view, it cannot be sensibly said that a golfer would regard a 10 – 12-year-old display green as an “elite type” putting green. To the contrary, it would be more sensibly said that the display turf had flattened and deteriorated to the point where any golfer wanting an “elite type” surface would replace it, not install it. In any event, Mr Brucic accepts that the Super County 9mm turf is a quality product. He also accepts that his concerns arose from the manner in which a golf ball rolled on the new turf, which could be addressed by adding more sand.

Conclusion

There is no evidence that the ball still skipped and bounced after the further sand was added. However, even if that were so, the applicant was not given any realistic opportunity to correct the surface in order to change the roll of the ball. Instead, on 11 December 2015 Mr Brucic elected to replace the turf.
I am left to wonder whether he did so, not because the applicant had not fulfilled its contract, but simply because he or his son wanted a different surface. That was a matter for them, but it does not excuse the respondent from paying the money owed to the applicant under its contract with the applicant.
For these reasons, I am not persuaded that the applicant did not provide or install the putting green in accordance with the contract. Accordingly, I accept the applicant’s submission that the respondent should pay the balance owing under the contract, namely $1,748. Where the applicant has been wholly successful in its claim, the respondent should also pay the filing fee of $136 and the search fee of $16.53.
I acknowledge that the contract provided for interest on unpaid amounts of 2% per month, but I make no allowance for this where it has not been claimed in the application. I do however allow statutory interest as claimed of $16.66.
I have given the respondent 28 days within which to pay the money. If the total amount owing ($1,917.19) is not paid within 28 days, the applicant may take enforcement action in the ACT Magistrates Court for non-payment of the debt. I refer to rules 2000-2002 of the Court Procedures Rules. The applicant’s costs of obtaining an enforcement order and interest would also be recoverable as part of the enforcement order under rule 2004 of the Court Procedures Rules.

Orders

For these reasons, the Tribunal’s order is that within 28 days the respondent pay the applicant $1,917.19 comprised of the following amounts:
(a)$1,748 for the balance owing under the contract.
(b)$136 for the filing fee.
(c)$16.53 for the search fee.
(d)$16.66 interest.
………………………………..
President G McCarthy
HEARING DETAILS

FILE NUMBER:	XD 46/16
PARTIES, APPLICANT:	Sheds Shade & Turf Pty Ltd
PARTIES, RESPONDENT:	Ozcro Civil and Construction Pty Ltd
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	President G McCarthy
DATES OF HEARING:	2 May 2016

[2016] ACAT 42

13 May 2016

Key Legal Topics

Areas of Law

Contract Law

Legal Concepts

Contract Formation

Breach of Contract

Compensatory Damages

Limitation Periods

Costs