Smyth v DCI Fencing Pty Ltd
[2013] QCAT 27
| CITATION: | Smyth v DCI Fencing Pty Ltd [2013] QCAT 27 |
| PARTIES: | Linda Smyth |
| v | |
| DCI Fencing Pty Ltd |
| APPLICATION NUMBER: | BDL135-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 18 October 2012 |
| HEARD AT: | Mackay |
| DECISION OF: | Graham Quinlivan, Member |
| DELIVERED ON: | 25 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. |
| CATCHWORDS: | Fence dispute – terms of agreement |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Linda Smyth |
| RESPONDENT: | Geoff Brumpton and Faye Wynne |
REASONS FOR DECISION
On 18 January 2012 Linda Smyth (the applicant) brought an application in the Queensland Civil and Administrative Tribunal (QCAT) seeking orders against Mr Geoff Brumpton and/or DCI Fencing Pty Ltd (the respondent) as follows:
i) Payment of interest, furniture damages, legal expenses totalling $2,205.51 plus interest.
ii) Refund of $4,000 deposit paid.
iii) Order Geoff Brumpton not to trespass on my property.
The application was listed for hearing in Mackay on 18 October 2012.
In her submissions dated 26 October 2012, the application identifies her claim costs and damages as amounting to $107,239.14 but seeks to limit her recovery to $25,000 “(a)s per Magistrates Court limits and rules”.
Relevant Facts
The application by Ms Smyth attached a Statement of Claim and some 35 attachments.
The Tribunal has been able to discern the following facts from the materials supplied by the parties:
·Around mid-August 2011 the applicant and respondent entered into an arrangement for the construction of some fencing at the applicant’s property at 44 Malcolmson St Mackay. The actual terms of the arrangement remain in dispute.
·Towards the end of August 2011 the applicant paid the respondent the amount of $4,000 by way of deposit for the work to be done.
·Despite many requests from the applicant to have the work commenced and completed urgently, no progress was made.
·In mid–October 2011 the respondent attended at the property and installed some temporary fencing.
·At around the same time the applicant arranged for another firm to undertake the work. The new firm provided a quote and the work was partly completed by the end of October 2011.
·At this time the respondent attended at the property and removed the temporary fencing. The applicant tried to negotiate with the respondent to complete the work.
·On 1 November 2011 the applicant’s solicitors wrote to Mr Brumpton terminating the contract, requesting their client’s deposit back and refusing to purchase any fencing materials from him.
·On 16 January 2012 the respondent paid the amount of $4,000 to the applicant, being the amount of the deposit initially paid by the applicant.
Applicant’s submissions
The details of the claim according to Ms Smyth are summarised as follows.
On 18 August 2011 Mr Brumpton attended at Ms Smyth’s property to discuss erecting a fence and measure up the fencing requirements. On 29 August 2011 the respondent provided an “Estimate” in the following terms: “Supply and install Gramline Colour Bond fence with one double gate, one single gate and post ready for another double gate at a later date. Supply and install 1800 high PVC Black chain wire barb top salvage and one double gate 5m wide. All posts and pipe work Gal finish.” Total including GST $7,834.86.
The Tribunal notes that the conditions at the bottom of the Estimate provide that:
“Customers are responsible for all boundaries and underground services: ie Water, Phone, Power, Drains etc. Whilst every care will be taken by the contractor, NO costs will be incurred by the contractor for damages.
Interest of 2.5% per day on overdue payments applies”.
Ms Smyth admits that there was no completion date for the work, but she claims that she was advised that the work would be completed by the “start of October, weather permitting”.
On 29 August 2011, Ms Smyth emailed a copy of the signed estimate to Mr Brumpton and deposited an amount of $4,000 being 50% of the quoted price into Mr Brumpton’s account. At the same time Ms Smyth continued to emphasise the urgency of the matter because she had to be able to securely contain her border collie pup.
On 20 September 2011 Ms Smyth travelled to Darwin and returned to Mackay on 10 October 2011 with a security pig dog. She again sought assurances from Mr Brumpton that the work would be starting on 17 October and completed.
On 14 October 2011 Mr Brumpton confirmed that he would set up temporary fencing on the next weekend. On 15 October 2011, Mr Brumpton attended at the premises and erected some temporary fencing.
On 17 October 2011 Mr Brumpton advised Ms Smyth that he was “in Bowen working for about 15 days”.
On 18 October 2011 Ms Smyth arranged for another firm to undertake the immediate task of installing secure mesh fencing to secure the dogs in the back yard.
On 29 October 2011 apart from one minor matter, the mesh fencing was completed by the other firm. Subsequent to the work being completed Mr Brumpton attended at the property and an altercation occurred.
On 30 October 2011 Ms Smyth demanded the return of her full deposit if Mr Brumpton carried through with a threat not to finish building the fence and to dump the building materials on her front lawn.
On the same day Ms Smyth also sought assistance from the Mackay police to prevent Mr Brumpton attending at her property.
On 21 November 2011 Mr Brumpton advised Ms Smyth that a refund cheque in the amount of $1,844.11 and the fencing materials could be collected from his business premises.
On 21 November 2011 Ms Smyth lodged a complaint with the Building Services Authority (BSA) and as a result Mr Brumpton was fined for a number of breaches of the legislation.
Particulars of the applicant’s claim for costs and damages are as follows:
· Magistrates Court fee $95.00
· Bailiff’s fee $79.00
· Replacement cost of destroyed rug $359.00
· Replacement cost of futon $719.99
· Repairs to antiques $500.00
· Solicitor’s costs $905.51
· Interest* $104,580.64
Total $107,239.14
Claim as per Magistrates Court limits and rules – $25,000
*The amount of interest claimed by the applicant is based on a spread-sheet submitted by her detailing default interest “as agreed on estimate 207 dated 29 August 2011 at “interest of 2.5% per day on overdue payments applies”.
Respondent’s submissions
Mr Brumpton submits that the deposit paid by the applicant on 29 August 2011 in the amount of $4,000 was returned to her in full on 16 January 2012.
In relation to the claim for interest he argues that the quote by DCI Fencing sets out the company’s terms for invoicing, as is the norm in business. He contends that the applicant has misunderstood how payment terms for invoicing work. He says that “in no way was the quote to be understood as any agreement that the Respondent would pay the Applicant interest on overdue payments.”
Further the Respondent submits that he did not agree that he would pay Ms Smyth any interest “akin to delay damages, or interest on any progress payment or deposit used to acquire materials on her behalf.” He strongly asserts that he advised the applicant in August 2011 that he could not commence the works for some time and certainly not before the start of October 2011.
The Respondent at paragraph 11 of his affidavit also claims that “(a)t no time has the company in its own capacity, nor I in my personal capacity contracted with the Applicant.”
He finally submits that the applicant claims $25,000 for costs and damages but that there is no proof of damages caused by DCI Fencing and therefore he seeks that the applicant’s claim be dismissed.
Consideration
As outlined above the simple facts in this matter are that in August 2011, the applicant and respondent engaged in some negotiations with a view to the respondent erecting some fencing at the applicant’s property. The actual terms of the agreement remain in dispute.
On 29 August 2011 the respondent provided the applicant with a quote of $7,122.66 to undertake the work. On the same day the applicant paid the respondent the amount of $4,000 by way of deposit.
Between August 2011 and October 2011 there was a constant stream of communication involving the parties. These exchanges are documented in meticulous detail by the applicant in her affidavit in response to the respondent’s affidavit dated 23 March 2012.
On 1 November 2011 solicitors acting for the applicant wrote to the respondent advising that the applicant considered that she had validly terminated the contract by email in mid-October 2011. At the same time the solicitors advised that the respondent was not to enter the applicant’s property or deliver any materials to her property. Further a demand was made to return the deposit of $4,000.00 to the applicant within 7 days.
The respondent paid the amount of $4,000.00 to the applicant on 16 January 2012. As a result the applicant was reimbursed the full amount that she paid some 4-5 months earlier.
The applicant’s total claim is for $25,000,00 and based on her figures apparently consists of $1,578.99 for damages to her property, legal costs totalling $1,079.51 and a balance of $22,341.50 for interest.
The Tribunal finds that the applicant has not established to its satisfaction that the terms of the arrangement were sufficiently certain to establish that there was on obligation on the respondent to complete the work by “the beginning of October”. Further there is insufficient evidence to demonstrate that the respondent should have been aware that the failure to undertake the task would result in damage to the applicant’s property as alleged. In particular the evidence does not show that the respondent was aware that the applicant would be bringing a second “security” dog from Darwin to her home. There appears to be no basis on which it could be found that the respondent was responsible for any of the damage alleged to have been incurred by the applicant.
In relation to legal costs the relevant parts of the QCAT Act provide at section 71 provide as follows:
(1)In a proceeding, the tribunal may award the costs it considers appropriate on—
(a) the application of a party to the proceeding; or
(b) its own initiative.(4)In deciding whether to award costs, and the amount of the costs, the tribunal may have regard to the following—
(a) the outcome of the proceeding;
(b) the conduct of the parties to the proceeding before and during the proceeding;
(c) the nature and complexity of the proceeding;
(d) the relative strengths of the claims made by each of the parties to the proceeding;
(e) any contravention of an Act by a party to the proceeding;
(g) anything else the tribunal considers relevant.The primary principle that applies in matters before the Tribunal is that each party will bear their own costs. The Tribunal is of the view that the only factor which may be relevant, is section 71(4)(e). It is not in dispute that the applicant reported the respondent to the Building Services Authority (BSA) and the BSA issued an infringement notice to DCI Fencing which resulted in a fine. The Tribunal has made no finding that there has been a contravention of an Act and does not consider that this is ground to award costs to the applicant. The Tribunal is therefore of the view that the primary principle should apply in this matter.
The applicant also seeks interest on the outstanding deposit that she paid to the respondent in August 2011. The Tribunal is satisfied that the applicant has totally misconstrued the meaning and intent of the quotation provided by the respondent. The applicant was not able to establish on the balance of probabilities that an agreement existed that the respondent would be liable to pay interest on any amounts allegedly owed to her. There is no substance for a claim for interest based on the quotation and the applicant has not provided any other basis for such a claim.
The application by the applicant for payment of interest, furniture damages, legal expenses and interest is therefore dismissed.
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