Streeters Earthmoving Pty Ltd v Burwell Technologies Pty Limited
[2011] QDC 110
•23 June 2011
DISTRICT COURT OF QUEENSLAND
CITATION:
Streeters Earthmoving Pty Ltd v Burwell Technologies Pty Limited [2011] QDC 110
PARTIES:
STREETERS EARTHMOVING PTY LTD ABN 89 066 594 321
(Plaintiff)v
BURWELL TECHNOLOGIES PTY LIMITED ACN 001 262 013
(Defendant)FILE NO/S:
D25 of 2008
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Gladstone
DELIVERED ON:
23 June 2011
DELIVERED AT:
Brisbane
HEARING DATE:
11 February 2011; final written submissions received on 21 April 2011
JUDGE:
Irwin DCJ
ORDER:
Claim dismissed
CATCHWORDS:
CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where the plaintiff claimed for the recovery of $82,809.65 as hire and associated charges that it said were owed to it arising out of a transaction with the defendant – where the plaintiff claimed that it had entered into a contract with the defendant – where the defendant maintained that there was no agreement in existence between the plaintiff and the defendant, but rather the plaintiff’s agreement was with a third party – where the defendant submitted that the plaintiff therefore had no contract to enforce as against the defendant, but rather had a contract to enforce against the third party– whether the plaintiff had established that it was a party to a contract with the defendant.
CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – REASONABLE REMUNERATION – EXPRESS OR IMPLIED PROMISES – whether in the alternative the plaintiff had established that there was an express agreement in existence between it and the defendant for it to do work for the defendant for a reasonable sum, giving rise on completion of the work to reasonable remuneration.
CONTRACT – QUANTUM MERUIT – RESTITUTION – UNJUST ENRICHMENT – where an enforceable contract existed between the defendant and a third party – whether the plaintiff entitled to succeed on the quantum meruit against the defendant.
Property Law Act 1974 (Qld), s 55(1)
Uniform Civil Procedure Rules 1999 (Qld), r 62, r 69
Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424, cited
Coulls v Bagot’s Executor Trustee Co Ltd (1967) 119 CLR 460, cited
Dunlop Pneumatic Tyre Co Ltd v Selfridge Co Ltd [1915] AC 847, cited
Horton v Jones [No 2] (1939) 39 SR (NSW) 305
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221, cited
Polhmann v Harrison (1993) 12 Aust Cons LR 80, applied
Trident General Insurance Co Limited v McNiece Bros Pty Ltd (1988) 165 CLR 107, applied
COUNSEL:
A M Arnold for the plaintiff
N M Cooke for the defendant
SOLICITORS:
V A J Byrne & Co. for the plaintiff
Mullins Lawyers for the defendant
The plaintiff, Streeters Earthmoving Pty Ltd (“Streeters”) amongst other things, hires out plant and equipment used in earthmoving and the production of earth products. As Mr Clive Streeter (“Mr Streeter”) said during his testimony, “we’re in the hire business and earthmoving and mainly crushing and screening equipment.”[1] Mr Streeter is the plaintiff’s director and shareholder.[2]
[1]T1-10, ll 33-34.
[2]T1-10, ll 28-30.
Streeters claims for the recovery of $82,809.65 as hire and associated charges for the crushing of garnet at Yarwun Quarries (“the Quarries”) but mined at Mt Alison, which it says is owed to it arising out of a transaction with the defendant, Burwell Technologies Pty Limited (“Burwell”). The claim is made as follows:
“The sum of $94,304.66 being for plant and equipment hire charges, labour hire charges, mobilisation charges, demobilisation charges, travel expenses and for goods supplied by the Plaintiff … to the Defendant at its request in or about April 2008.”
Streeters also claims interest and costs.
As Mr Arnold puts it on behalf of Streeters, the claim is for the recovery of money owing, either by way of contract or on the basis of goods and services requested of and supplied by it to Burwell, at Burwell’s request and for which reasonable remuneration is payable.[3]
[3]Final Submissions on behalf of the Plaintiff, filed 8 April 2011, para [4].
The particulars of the claim are set out in the Amended Statement of Claim on the basis of Exhibit 1 which is an invoice numbered 2352 dated 23 April 2008 provided by Streeters to Burwell.
The difference between the invoiced amount and the amount now claimed is a reduction in the amount claimed for the hire of a machine described as a “V.S.I. Crushing Plant”. Originally there was a claim of 100 hours minimum hire for this machine. However this has been reduced to a claim of 45 hours as a result of Mr Streeter mitigating his loss through buying it.[4]
[4]T1-7, 1-53 to T1-8, l 5. I gave the plaintiff leave to file an Amended Claim and Further Amended Statement of Claim at the hearing. This was without objection, see T1-3, l 1 to T1-4, l 23. See also Final Submissions on behalf of the Plaintiff, filed 8 April 2011, para [5].
Burwell is a manufacturer and distributor of air blaster equipment, dust extraction systems, abrasives and accessories for the surface preparation industry.[5]
[5]Submissions on behalf of the Defendant, dated 23 March 2011, para [1].
Streeters’ case is that the contract arose out of a conversation between Mr Streeter and Mr Len Bessell, an agent for Burwell; and the plant and equipment and services were to be used in the production of grains of garnet for commercial return by Burwell. Streeters says that the whole of the tax invoice forwarded to Burwell particularising the claim remains unpaid, with Burwell neither paying it nor any other person for what Streeters says is owing to it because of the transaction.[6]
[6]Ibid, paras [6]-[9].
The pleadings
The issues which arise between Streeters and Burwell are identified by reference to the pleadings.
Statement of Claim[7]
[7]This incorporates the Statement of Claim, filed 19 August 2008, Amended Statement of Claim, filed 6 August 2009, and Further Amended Statement of Claim, filed by leave at the hearing; and the Amended Further and Better Particulars of the Plaintiff’s Statement of Claim, dated 11 September 2009.
Streeters pleads that at all material times Mr Bessell was a servant or agent of Burwell and acted as such in Burwell’s dealings with it.[8]
[8]Further Amended Statement of Claim, filed by leave at the hearing, para [4].
It claims that in or about April 2008 Mr Bessell on behalf of Burwell requested Streeters to hire plant and equipment to Burwell and Streeters hired plant and equipment, provided labour in connection with this, and supplied fuel.[9] By way of further and better particulars it was pleaded that Mr Bessell’s request was made of Mr Streeter on behalf of Streeters at the Quarries on a day in early April 2008 at approximately 2 pm in the presence of Brian Kevin Scott (“Mr Scott”), a director and shareholder of Scottco Pty Ltd (“Scottco”), the proprietor of the Quarries. The substance and effect of the request was that the hire, labour and supply of fuel was to take place at the Quarries to crush garnet which was to be mined by Scottco.[10]
[9]Ibid, para [5].
[10]Amended Further and Better Particulars of the Plaintiff’s Statement of Claim, dated 11 September 2009, para [1].
Further, it is pleaded that it was an express condition of such hire, agreed by Burwell, that as Streeters’ plant and equipment was then permanently on hire pursuant to contractual obligations Streeters had with Scottco to provide crushing and screening of raw material so that Scottco could provide crushed material to Rio Tinto Limited (“the obligations”), mobilisation and hire charges were payable by Burwell to Streeters while ever its plant and equipment was not available to attend the obligations.[11]
[11]Further Amended Statement of Claim, filed by leave at the hearing, para [6].
By way of further and better particulars it was pleaded that the agreement to hire took place at the date, time and place referred to in paragraph [10] of this judgment, between Mr Streeter on behalf of Streeters and Mr Bessell on behalf of Burwell discussing and agreeing personally.[12]
[12]Amended Further and Better Particulars of the Plaintiff’s Statement of Claim, dated 11 September 2009, para [2].
The substance and effect of the agreement to hire, was pleaded as:[13]
[13]Ibid.
· That the hire was to take place at the Quarries to crush garnet which was to be mined for Burwell by Scottco;
· Burwell would supply its own screens and would be liable to all charges rendered for hire of the plant and equipment in the event that the screens were incorrectly sized;
· As Streeters then had its plant and equipment permanently on hire pursuant to contractual obligations to Scottco to provide crushing and screening of raw material for the purpose of the obligations, full mobilisation, demobilisation and hire charges would be payable by Burwell to Streeters while ever the plant and equipment was not available to it to attend to the obligations.
· Streeters would have to hire the V.S.I. Crushing Plant and Burwell would pay whatever hire and other charges were paid by Streeters together with mobilisation and demobilisation in respect thereof; and
· Streeters’ hire charges, labour costs in connection with such hire and cost of fuel to be supplied would be paid by Burwell to it upon issue of Streeters’ tax invoice within its usual terms of trade.
It is further particularised that the contract was oral, well known by and agreed to by Burwell and its terms and conditions as agreed were performed by Streeters.[14]
[14]Ibid.
The particulars of the charges incurred by Burwell with Streeters, as stated in paragraph [4] of this judgment are particularised on the basis of the invoice numbered 2352 dated 23 April 2008 provided by Streeters to Burwell as follows:[15]
[15]Further Amended Statement of Claim, filed by leave at the hearing, para [7]. As stated the invoice is Exhibit 1 in these proceedings.
Description Hours Rate Excl GST Amount Mobilzation of VSI Crushing Plant 4,000.00 4,000.00 Demobilization of VSI Crushing Plant 4,000.00 4,000.00 Minimum hire of Lincom Pacific V.S.I. Plant100190.0019,000.00Minimum hire of Lincom Pacific V.S.I. Plant 45 190.00 8,550.00 Erwin Kock (Lincom Crushing Technician) travelled from Brisbane to Gladstone in service truck 585 km 585 0.45 263.25 Erwin Kock travel time from Brisbane to Gladstone 650.00 Hire of 16G Grader with operator 3.5 150.00 525.00 Labour hire for Erwin Kock 48 100.00 4,800.00 Labour hire 3 men @ $150.00 p/h 48 150.00 7,200.00 Erwin Kock (Lincom crushing Technician) travelled from Gladstone to Brisbane in service Truck – 585 kms) 585 0.45 263.25 Erwin Kock travel time from Gladstone to Brisbane 650.00 Hire of Cone 45 300.00 13,500.00 Hire of Jaw 45 280.00 12,600.00 Hire of 1800 Screening Plant 45 145.00 6,525.00 Hire of 2100T Screening Plant 45 145.00 6,525.00 Hire of 330CL Excavator 45 100.00 4,500.00 Supply of fuel 730.00 730.00 SUBTOTAL$85,731.50GST TOTAL$8,573.16TOTAL$94,304.66SUBTOTAL $75,281.50 GST TOTAL $7,528.15 TOTAL $82,809.65
The further and better particulars provide details of the date the hiring of the plant and equipment took place, the labour was required, the fuel supplied and the length of time involved.[16]
[16]Amended Further and Better Particulars of the Plaintiff’s Statement of Claim, dated 11 September 2009, paras [3] and [4].
The Defence
Burwell admits that at all material times Mr Bessell was its servant or agent and acted as such in its dealings with Streeters, and further says that he was the project manager in their employ at the material time.[17]
[17]Ibid, para [3].
Burwell denies that it requested Streeters to hire plant and equipment, provide labour in connection with this and supply fuel as alleged.[18]
[18]Ibid para [4](a).
It says it did not engage Streeters, did not enter into any contract or agreement with Streeters and that:[19]
[19]Ibid.
· on or about 25 March 2008 at approximately 2 pm at a meeting between Mr Bessell on behalf of Burwell and Mr Scott, at Scottco’s office at the Quarries, Mr Bessell asked Mr Scott to provide him with costings for the hire of plant and equipment necessary to conduct Burwell’s garnet crushing trial.
· At the meeting Mr Scott informed Mr Bessell that because Scottco did not possess a V.S.I. machine it would have to hire the machine itself or outsource the hiring to Streeters, and recommended Burwell engage Streeters, with whom he had prior dealings, to hire the required plant and equipment.
· Halfway through the meeting, Mr Streeter interrupted the meeting at approximately 2.30 pm, advising Messrs Bessell and Scott that he did not want to enter into any agreement with Burwell. As particularised, he burst into the meeting and said words to the effect of, “I don’t want anything to do with those cunts in Sydney. I don’t want to move any of my equipment from where its been set up.”
· In consequence of Mr Streeter’s comments, Mr Bessell informed Mr Scott that Burwell did not want to enter into a hire agreement with Streeters and that if the project was to continue, Scottco would have to supply Burwell with the plant and equipment necessary to conduct the garnet crushing trial.
Further and in the alternative, Burwell denies the claim on the basis that no agreement regarding the applicable hire fees was reached between Streeters and it.[20]
[20]Ibid, para 4(b).
Consequently Burwell pleads that it requested Scottco to hire the plant and equipment, provide the labour in connection with it and supply fuel; and entered into an agreement with Scottco, the express terms of which were as follows:[21]
[21]Ibid, para 5(a).
· Scottco agreed to supply Burwell with the following plant and equipment at the prescribed rates on a time costed basis for the time the items were in use:
- V.S.I. Machine - $190.00 per hour + GST, fuel costs, a wear factor and freight costs to and from Brisbane in the sum of approximately $4,000 each way;
- 16G grader - $140.00 per hour;
- Cone - $300 per hour + GST plus a wear factor;
- Jaw - $300 per hour + GST plus a wear factor;
- 1800 screening plant - $160 per hour + GST plus fuel;
- 2100T screening plant + $160.00 per hour + GST plus fuel;
- 330 CL excavator - $140.00 per hour + GST plus fuel.
Further, Burwell agreed to supply its own screens and be liable for all costs arising out of the circumstances in the event the screens were incorrectly sized.[22]
[22]Ibid, para [5](b).
Burwell further says that on 26 March 2008, Mr Bessell advised Charles Longworth (“Mr Longworth”), consultant for it, of the costs associated with the hire of the plant and equipment that he had agreed with Mr Scott, by email at approximately 10.45am.[23]
[23]Ibid, para [6]. The email is Exhibit 12.
Burwell denies it was an express condition of hire that mobilisation, demobilisation and hire charges were payable by the defendant while ever Streeter’s plant and equipment was not available for use for the obligations, by reason of the matters set out in paragraphs [19] and [20] of this judgment.[24]
[24]Ibid, para [7](a).
It is pleaded further, or alternatively, that if it is found that Burwell did engage Streeters to act on its behalf, which is denied, it did not agree to pay mobilisation, demobilisation and hire charges that Streeters would incur as a result of the obligations whilst the plant and equipment was being used by it, because:[25]
· the terms of the agreement were that the plant and equipment would be charged on a time costed basis for the time the plant and equipment were in use;
· Burwell was unaware of the obligations and/or the associated costs and could therefore necessarily not agree to pay for those costs.
[25]Ibid, para [7](b).
Burwell admits that it has been provided with a copy of the invoice numbered 2352 dated 23 April 2008 but denies it is liable in respect of the costs particularised therein.[26]
[26]Ibid, para [8](a)-(c).
It also admits it is liable to Scottco in respect of the following costs:[27]
[27]Ibid, para [8](d)
Description Amount excluding GST Mobilisation of VSI crushing machine $4,000.00 Demobilisation of VSI crushing machine $4,000.00 Hire of VSI crushing plant (4 hours) $760.00 Erwin Kock (Lincom crushing technician) $263.25 Erwin Kock travel time $650.00 Hire of 16G Grader (3.5 hours) $525.00 Labour hire for Erwin Kock (8 hours) $800.00 Labour hire for 2 men@$125 p/h (8 hours) – cleanout $2,000.00 Locate primary & secondary crushers @ $200 p/h (8 hrs) $1,200.00 Erwin Kock travel time $263.25 Erwin Kock travel time $650.00 Hire of Cone @ $300 per hour (8 hours) $2,400.00 Hire of Jaw @ $280 per hour (16 hours) $4,480.00 Hire of 1800 screening plant @ $145 per hour (8 hours) $1,160.00 Hire of 2100T screening plant @ $145 per hour (8 hours) $1,160.00 Hire of 330CL excavator @ $100 per hour (4 hours) $400.00 Supply of fuel $730.00 TOTAL $25.441.50
While admitting that Streeters has demanded payment of the invoice, Burwell denies it is indebted to Streeters in the amount claimed. It admits to being liable to Scottco in the amount of $25,441.50.[28]
[28]Ibid, para [9].
Reply
Streeters replied that Burwell did enter into a contract or agreement with it through Mr Bessell on Burwell’s behalf.[29]
[29]Reply, filed 9 December 2008, para [4](a).
It says that at a meeting between Mr Bessell and Mr Scott at Scottco’s office at the Quarries, Mr Scott informed Mr Bessell, and it was a fact, that Mr Scott did not have the plant and equipment for hire for Burwell to conduct the garnet crushing trial but to his knowledge, Streeters had most of the necessary plant and equipment which Burwell would have to hire from it.[30]
[30]Ibid, para [4](a)(i).
Further Streeters says that at this meeting:[31]
· Mr Scott informed Mr Bessell, and it was a fact, that not only did Scottco not possess a V.S.I. Crushing Plant but also that Scottco did not have the other plant and equipment Burwell needed to hire so that Burwell would need to hire it from Streeters and would have to hire the V.S.I. Crushing Plant itself or outsource its hire to Streeters;
· Mr Scott informed Mr Bessell and Mr Bessell was aware that Mr Scott had prior dealings with Streeters, Scottco did not have the plant and equipment for hire that Burwell would require, Streeters had much of it on site at the Quarries and Burwell would have to hire it from Streeters and would have to hire the V.S.I. Crushing Plant itself or outsource it from Streeters.
[31]Ibid, para [4](a)(ii). I note that the reply refers to this as the “VSI Machine”. However to the extent possible I have chosen to refer to it in this judgment as the “V.S.I. Crushing Plant” which is the term used by Streeters in Exhibit 1.
Streeters also says that Mr Streeter was present at the meeting and advised Mr Bessell to the effect that he had no interest in entering into any agreement to hire his plant and equipment which was on permanent hire pursuant to the obligations and was only interested in hiring the plant and equipment if Burwell would agree to pay full mobilisation, demobilisation and hire charges while ever Streeters’ plant and equipment was not available to it to attend to the obligations.[32]
[32]Ibid, para [4](a)(iii).
It is also said, Mr Streeter informed Mr Bessell that Streeters would have to hire the V.S.I. Crushing Plant and Burwell would have to pay whatever hire and other charges including mobilisation and demobilisation charges which Streeters incurred in respect thereof.[33]
[33]Ibid.
Streeters denies that Mr Streeter burst into the meeting and said what is alleged as set out at paragraph [19] of this judgment. It says it did not know Burwell’s servants or agents in Sydney.[34]
[34]Ibid.
Streeters admits that Mr Streeter made it known in no uncertain terms what is set out in paragraphs [32] and [33] of this judgment.[35]
[35]Ibid.
It further says that at or about this time, Mr Bessell informed Mr Streeter that Burwell would provide the screens to be used in conjunction with Burwell’s hire of Streeters’ plant and equipment and Mr Streeter advised that it was essential if Burwell was to provide the screens that it would have to ensure they were correctly sized because if they weren’t there would be hire charges for the associated down time for the plant and equipment for which Burwell would have to pay.[36]
[36]Ibid.
It is said that Mr Bessell informed Mr Streeter in Mr Scott’s presence, that Burwell would hire the plant and equipment from Streeters on these terms and conditions.[37]
[37]Ibid, para [4](a)(iv).
Streeters adopts Burwell’s admission that it agreed it was to supply its own screens and be liable for all costs arising in the event the screens were incorrectly sized.[38]
[38]Ibid, para [5](b).
Streeters denies that Mr Bessell requested Scottco to hire certain plant and equipment, provide labour in connection with this and supply fuel and that Burwell entered into an agreement with Scottco with the express terms alleged by Burwell.[39]
[39]Ibid, para 5(a).
Further, Streeters says that Scottco did not have the plant and equipment for hire to Burwell and in order to do so, it would have had to hire all such plant and equipment including the V.S.I. Crushing Plant itself or outsource such hire similarly to the hire of the machine by Streeters for its hire to Burwell and similar charges would have been incurred.[40]
[40]Ibid.
Streeters further says there was no agreement made at the meeting between Scottco and Burwell that the plant and equipment would be hired at the charge out rates on a time costed basis and neither Scottco or Burwell could have made such an agreement.[41]
[41]Ibid.
Streeters says that if Mr Bessell forwarded an email to Mr Longworth on or about 26 March 2008 at approximately 10.54 am advising costs associated with the hire of the plant and equipment that he had agreed with Mr Scott:[42]
[42]Ibid, para [6].
· There was no such agreement with Mr Scott;
· There was an agreement with Streeters but not in those terms;
· There were other terms and conditions imposed on the agreement not advised in the email.
· Neither Mr Scott nor Mr Bessell had any standing to agree to hire Streeters’ plant and equipment at the rates alleged.
It is also asserted that any such email is self serving, inherently improbable and wrong in fact and in law.[43]
[43]Ibid.
Streeters says that it was an express condition of the hire that mobilisation, demobilisation and hire charges were payable by Burwell while ever Streeters’ plant and equipment was not available for use in the obligations pursuant to which Streeters’ plant and equipment was on permanent hire.[44]
[44]Ibid, para [7].
Therefore Streeters also says:[45]
· the plant and equipment was hired by Streeters to Burwell as alleged by it in the Statement of Claim and not on a time costed basis for the time the plant and equipment was in use; and
· Mr Bessell was made specifically aware of the obligations and specifically agreed that Burwell would pay full mobilisation, demobilisation and hire charges while ever Streeters’ plant and equipment was not available for Streeters to attend to the obligations and that Streeters would have to hire the V.S.I. Crushing Plant and Burwell would have to pay whatever the hire and other charges including mobilisation and demobilisation charges were which Streeters incurred in respect thereof.
[45]Ibid, para [7](b).
In conclusion Streeters alleges that Burwell is liable to pay Streeters the hire charges for the plant and equipment, labour charges and fuel costs as particularised in the invoice numbered 2352 dated 23rd April 2008, and says that neither in fact nor in law could Burwell agree with Scottco to hire Streeters’ plant and equipment from Scottco.
The hearing
Mr Streeter[46]
[46]T1-10, l 18 to T1-50, l 30.
Mr Streeter gave evidence that part of Streeters’ business is conducted at the Quarries where he does all of the contract crushing for Brian Scott at Scottco. He said “the rock is shot out of the hill into large quantities and we reduce it to different sizes for road base, concrete aggregate and such.”[47]
[47]T1-11, ll 4-7.
Streeters had been doing this for Scottco since October 2007. Scottco was contracted to Goldings which was doing the main earthworks and footings for the expansion at Rio Tinto. He described this as a “hellish big order to fulfil there, which we were working seven days a week.”[48] It would crush the material and put it in stock piles. Scottco loaded it and delivered it in trucks. Streeters had its plant and equipment at the Quarries, several of which were marked, “Streeters Earthmoving.”
[48]Ibid, ll 46-47.
His evidence was that Streeters and Scottco had “a small written agreement … not really a legal contract. It was just something drawn up between us to honour our word, that I supplied the material to Scottco”.[49] Streeters was then paid a certain amount for the volume of rock crushed. It was paid by the truck load per tonne across the weighbridge. Mr Streeter described it as doing “contract crushing for them.”[50] He said that at the end of the month Streeters gave Scottco a tax invoice for the total weighbridge amount for the work it had done for Scottco.
[49]T1-12, ll 8-11.
[50]T1-34, ll 13-15.
He said there were several times when he met Mr Bessell at the Quarries. According to him it was a casual affair. As he described it:[51]
“He came in there several times, I believe to talk to … Brian Scott from Scottco, about the mining at Mount Allison and I just came there several times and met him and a bit of casual talk and I went about my business.”
[51]T1-12, l 55 to T1-13 l 1.
Mr Streeter said that he remembers having a conversation with Mr Bessell which lead him to doing some work for Burwell. He believed this was in March 2008. It was in Mr Scott’s office at the Quarries.[52] He described how he came to be involved as follows:[53]
“Well, I didn’t have anything to do with the mining … from Mount Allison. It was only when it was brought to the quarry and stockpiled, then on that meeting … at Scottco’s office did we start arranging or discussing the contract – the job.”
[52]At T1-13, ll 28-30 he described this as an eight by three hut, from which the weighbridge was also run.
[53]T1-13, ll 37-41.
He said that he knew the job was coming up because Mr Scott was doing the mining at Mount Alison and he knew from “smaller talks that I was eventually going to be asked to put a proposal through to crush … the garnet.”[54]
[54]Ibid ll 46-48.
Mr Streeter said that Mr Bessell wanted him to crush the garnet down to a particular size to make sandblasting sand. He described it as a pretty casual meeting. There was a discussion about the prices and availability of his equipment. This extended to the type of plant and equipment required to do the job. Mr Bessell agreed that Streeters’ plant and equipment would not bring it down to the specific size he wanted and that they had to have a V.S.I. Crushing Machine which creates a finer product from which to make sandblasting sand. He said:[55]
“… it was a pretty casual meeting … we just discussed what my workload was and if I … had time to stand down from my Rio job to do that job and it was a matter of me then finding out if that VSI was available and what type … and really when he would like to do the project … so it was just a matter of the two of us working out what was the best time frame.”
Having said that the meeting was an hour[56] or a maximum of an hour,[57] Mr Streeter put it as “Thirty minutes, on.”[58]
[55]T1-15, ll 24-33.
[56]T1-17, l 10.
[57]T1-43, ll 12-13 (he added, “I don’t think it was that long”)
[58]T1-43, l 57 to T1-44 l 1.
He said that it was either at this meeting or another meeting that they found out that the V.S.I. Crushing Plant was available and the pricing of it. His evidence was because it was a brand new plant for which the normal standard rate was $190 an hour, the suppliers weren’t prepared to hire it out for under 100 hours because from the moment it went out on hire it became second hand. He said that Mr Bessell was aware of this. The mobilisation and demobilisation costs of transport of this machine from Brisbane and return was discussed and understood by Mr Bessell. The obtaining of the screens was also discussed.
Mr Streeter’s evidence was he told Mr Bessell that he wanted “full hire the moment [he] stepped out of that quarry because we had to clean all impurities … out of the cones, the jaws, the screens.” He said that Mr Bessell understood this. He said that Mr Bessell was agreeable to paying hourly rates of 10 hours a day from this time until it was reversed back to the Rio Tinto job.
Mr Streeter said in relation to this:[59]
“That was the main important thing … [Mr Bessell] was told that the moment I pulled it out of the sequence for making material for Rio, he would be up for the same hire as if I was working, because that’s taking my livelihood away from me.”
[59]T1-22 ll 11-15.
He also said that the main part of their discussion was the rates and charges because naturally Mr Bessell had to report back to his superiors as to what roughly the costs would be. The hourly rate per individual machine was brought to Mr Bessell’s attention. However because they did not know how many days the operation would take the total amount was unknown. The only fixed price was the V.S.I. Crushing Plant which they knew was for 100 hours minimum hire.
When Mr Arnold asked him whether he recalled how the meeting came to an end, he replied:[60]
[60]T1-17, ll 14-17.
“… I didn’t want to do the job ‘cause I was busy doing other work and I did say to Mr Bessell I would not be embarrassed if he brought in other crushing plants ‘cause I am too busy.”
He responded to Mr Cooke’s cross-examination by saying:[61]
[61]T1-42, ll 34-37.
“It was inconvenient to me. I wasn’t even getting aroused with Mr Bessell … the words were, “I don’t need the job and I’m not embarrassed if you brought in another crushing contractor.”
He also said:[62]
“Not that I had anything against the people. I was too busy tied up with what I was doing … and for me to fall behind was … a great responsibility on my company and to Brian Scott, Scottco.”
[62]T1-44, ll 9-12.
However he denied using the words attributed to him in the defence as set out in the third dot point of paragraph [19] of this judgment; and consistently with the Reply set out in paragraph [34] he said that while he has been known to regularly use those words, there was no need to do so because he had not met the people from Sydney and they weren’t overdue to pay him.
During his evidence he explained Streeters’ invoice numbered 2352 dated 23 September 2008 to Burwell which is as set out at paragraph [15] of this judgment, subject to the amendment in the amount claimed for the V.S.I. Crushing Plant.
The charge of $8000 for mobilisation and demobilisation of the V.S.I. Crushing Plant was supported by an invoice from the haulage company.[63] Mr Streeter’s evidence was that he had paid this amount.
[63]Exhibit 3.
The original claim of $19,000 for the hire of this machine was supported by an invoice from Lincom Equipment Rentals Pty Ltd (“Lincom”), dated 30 April 2008.[64] This includes:
[64]Exhibit 4. Exhibit 5 was the Lincom Rental Schedule also dated 30 April 2008. It gives 1 April 2008 as the order, delivery and start date. It states the “Dry Hire Rate” as $190 per hour + GST. It was signed on behalf of Lincom on 30 April 2008 and by Mr Streeter on 8 May 2008. He said that prior to this he only had a verbal agreement in place.
“100 hrs @ $190.00 per hour
From 01/04/08 – 30/04/08
Minimum 100 hrs charged as per
our fax dated 21/3/08”
This document was also signed on 30 April 2008.
Consistently with paragraph [5] of this judgment Mr Streeter said because he purchased the machine he waived the $19,000 hire charge and claimed for 45 hours on the basis that “the other plant … was worked on 45 hours of that stand down period so it’ll incur the same costs.”[65]
[65]T1-19, ll 36-38.
He said that the claim for travel time for Erwin Kock who is described as a Lincom crushing technician was for him to commission the machine and adjust it to make the finer material.
The claim for the 16G grader with operator was for the time worked out on the hour meter.
Mr Streeter said that labour hire costs claimed were worked out on 10 hours a day, four days a week and eight hours on Friday.[66]
[66]This was a reference to Erwin Kock and three of Streeters’ men. This was also itemised in a letter dated 24 April 2008 from Streeters to Burwell which purported to set out detailed information of the account. This was signed by Mr Streeter and is Exhibit 2. It also enclosed invoice numbered 2352 which is Exhibit 1.
The charges for the hire of the cone, the jaw, the 1800 Screening Plant, the 2100T Screening Plant and the 300 CL Excavator were worked out on this basis at 45 hours. Streeter said as brought to Mr Bessell’s attention when making the deal, that these were the hours it would have worked if it was doing the Rio Tinto job.[67]
[67]T1-21, ll 30-50.
There was also a charge of $730 for diesel fuel for all the plant.
Mr Streeter said that the actual crushing took three to four hours because the screens which Burwell arranged were the wrong size. Consequently when Burwell’s representatives arrived from Sydney for the trial crush it was necessary to improvise with some other screens that made the product too small.
He had not met the Sydney representatives before this day. All of his business had been done through Mr Bessell. After he met them he went about his business of crushing. He was told by these people that the product was of an inferior quality.
Mr Streeter said that the response to his 24 April 2011 letter to Burwell together with invoice numbered 2352 was a letter from Mr Longworth dated 28 April 2008.[68] This letter was as follows:
[68]Exhibit 6. This was admitted without objection from Mr Cooke.
“Dear Clive,
RE: PLANT HIRE ECONOMITE PTY LTD – GARNET CRUSHING TRIAL YARWUN QUARRY 15 & 16 APRIL 2008
Thank you for emailing the job history and invoice for site and equipment preparation, mobilisation, demobilisation and crushing trials undertaken at Yarwun Quarry, week commencing 14 April 2008.
While I was not expecting any gratuities regarding this trial, the hire times for the jaw crusher, 1300 cone, 2100 & 1800 screen and VSI units seem excessive, given the actual time worked. I realise that the equipment was deployed from quarry production work but understood that there would be some concession in this respect, given the nature of the evaluation work being undertaken and the potential benefits for Economite/Burwell and Yarwun/Streeters in the development of a process for a saleable garnet blasting medium.
The areas of concern to me are:
1.The 100 hours minimum hire for the VSI machine. I was not made aware of a minimum hire and in fact discussed the likely test time with Brian Scott, of one or two days, depending on the ease of crushing of the garnet. While I am not disputing a minimum hire time, the 100 hours seems inequitable given that the machine did a less than 8 hours physical size reduction. Would you ask Lincom Pacific to consider an hire rate ($190/hr) and a standby rate?
2.The jaw crusher worked for a maximum 16 hours and the cone, 2100 and 1800 screen units 8 hours. I would ask that you consider revising the 45 hour full hire rate to a working rate and a standby rate.
3.On a similar note I would ask that you consider the actual 330CL excavator working time.
I am available to discuss this matter in more detail, should you wish.” (emphasis added)
Mr Streeter responded to this by a letter dated 8 May 2008.[69] His evidence was that this letter was a true account. It was as follows:
[69]Exhibit 7. This was also tendered without objection.
“Dear Sandy
PLANT HIRE ECONOMITE PTY LTD
GARNET CRUSHING TRIAL YARWUN QUARRY 15 & 16 APRIL 2008Thank you for your letter dated 28 April 2008 regarding the above project and our invoice for work completed.
I understand and appreciate that this test project has future potential benefits to our organisation and the greater Gladstone region in general. However it is also important to note that, because it was a test, associated expenses will be higher than those associated with a fixed, long term project.
Therefore in response to your concerns I make the following comments:
Lincom’s standard minimum hire for a VSI is 100 hours and this rate applies to any business that wishes to hire this machine. This matter was discussed with Len Bessel in a meeting with Len, Brian Scott and myself prior to the project commencing. The fact that this discussion was not communicated to you by Len is out of my control and unfortunately Lincom is not prepared to provide a standby and working rate for this equipment.
I had originally offered to order the screens from Lincom with the specifications required for this project. However it was decided that Burwell would order the screens themselves direct from Locker. Our equipment was moved only when the screens had arrived however the screens were incorrect and this caused an unnecessary delay to the project commencement.
It was not practical to move the equipment back to the production site of Yarwun Quarries nor was it my responsibility that the screens were incorrect. Based on these circumstances I am not prepared to reduce part of time to a standby rate for delays in processing out of my control. Had the screens been correct the job would have been completed in a more timely manner and therefore the cost would be significantly less than that invoiced.
As you are aware the equipment required was moved from the production site of Yarwun Quarries to another site within the Quarry for the garnet crushing, thereby ceasing production for Yarwun Quarries. During this time our 972 Loader and Telestacker Stockpiler machines were both idle and have not been charged back to your organisation.
If this project becomes a fixed, long term venture then additional equipment will be made available specifically for the garnet therefore reducing the processing costs of that invoiced to you at this time.
I hope this information clarifies the situation and I look forward to receiving payment for the work as invoiced.” (emphasis added)
In response, a letter dated 27 May 2008 was received from Burwell under the hand of Geoffrey R Williams, Managing Director.[70] This letter was as follows:
[70]Exhibit 8. Again this was received without obligation.
“We acknowledge receipt of your letter to Sandy Longworth dated 8th May, 2008 regarding your account of 23rd April 2008 for the trial crushing of Garnet at Yarwun Quarry.
As per Sandy Longworth’s letter to you of 28th April 2008, we have some real concerns regarding your charges.
We have spoken to Len Bessell on numerous occasions re your claims that he was advised there would be a minimum of 100 hours hire charge and he is emphatic that he was never advised of these circumstances at any time.
Sandy has also confirmed that the was never advised by you or anyone else during the period leading up to our confirmation that we wished to trial this machine for the crushing of our product.
You did advise us that the machine would incur a freight charge from Brisbane and also its return. However, Len advises that you indicated it was always your intention to purchase the machine and therefore we would be charged for the hours that it was used at $190 per hour. I repeat, at no stage would we commit to 100 hours hire when we did not even know if the V.S.I. would be satisfactory for our application. We pride ourselves on being good business managers and to commit to 100 hours hire without knowing if something works is not good business.
As the machine worked for the whole of 1-2 hours and was then removed from the crushing operation because it was too severe on our product, we have great difficulty in accepting your account for 100 hours hire, especially when we did not agree to it in the first place.
It is also our view that your invoice in total is unreasonable as Sandy pointed out the maximum amount of time even for the jaw crusher was 16 hours. The fact that the screens were wrong was not your fault and we agree with that comment, however, even if they had been correct there is no way that 100 hours would have been required to carry out the crushing work on our product.
We always maintained that this job was a trial and that you would charge us for the time that it took to carry out our job with the view of continual future business from us for years to come as this project goes into full production.
As you would be further aware, there was no contract or order number issued by us for this job so therefore it makes it very difficult for us to comprehend that a charge of this magnitude for the crushing of about 10 tonne of product could be rendered.
We are a professional company and we do not conduct business for large sums of money without order numbers or contracts. We have been in business for 40 years and we normally pay our suppliers or contractors for services rendered, however, not 100 hours for 2 hours work.
We are therefore going to make you an offer of payment as listed below which we believe to be extremely fair and reasonable considering the circumstances surrounding this situation:
Description Hours Rate Excl GST Amount Mobilzation of VSI Crushing Plant 4,000.00 4,000.00 Demobilization of VSI Crushing Plant 4,000.00 4,000.00 Minimum Hire of Lincom Pacific V.S.I. Plant 8 190.00 1,520.00 Erwin Kock (Lincom Crushing Technician) travelled from Brisbane to Gladstone in service truck - 585 km 585 0.45 263.25 Erwin Kock travel time from Brisbane to Gladstone 650.00 650.00 Hire of 16G Grader with Operator 3.5 150.00 525.00 Labour hire for Erwin Kock 48 100.00 4,800.00 Labour hire - 3 men @ $150.00 per hour 48 150.00 7,200.00 Erwin Kock (Lincom crushing technician) travelled from Gladstone to Brisbane in service truck – 585 klms) 585 0.45 263.25 Erwin Kock travel time from Gladstone to Brisbane 650.00 650.00 Hire of Cone 16 300.00 4,800.00 Hire of Jaw 16 280.00 4,480.00 Hire of 1800 Screening Plant 16 145.00 2,320.00 Hire of 2100T Screening Plant 16 145.00 2,320.00 Hire of 330CL Excavator 16 100.00 1,600.00 Supply of fuel 730.00 730.00 If you accept that offer, we will TT the funds into your nominated account.
If you believe that our offer is unreasonable, then the next step is regretfully unpleasant and will involve a long drawn out dispute which I do not believe will be in either party’s interest.
There is every chance that we will be using your services in the future should you wish to work for us and on that basis we believe our offer should be seriously considered.
We will now wait for your response and trust this matter can be resolved in the interest of both parties.” (my emphasis added)
It is apparent that the only difference between Streeters’ invoice numbered 2352 and Burwell’s offer of payment in response is the reduction in the hours on which the hire of the V.S.I. Crushing Plant, the Cone, the Jaw, the 1800 Screening Plant, the 2100 T Screening Plant and the 330 CL Excavator was calculated.
When cross-examined Mr Streeter agreed that there was only one meeting between he and Mr Bessell where the rates and charges were discussed. He agreed that it took place on 25 March 2008 at approximately 2 pm as pleaded by Burwell. He also believed the particulars were wrong in asserting that it took place in or about early April 2008. He said that the organising and pricing of the project was all done at this one meeting at the start of it.
Mr Streeter said that Mr Scott had told him that Mr Bessell was coming to the Quarries to discuss the crushing application for Burwell. He did not know the exact time. Subsequently he came to the office when Mr Scott or his daughter informed him that Mr Bessell was there.
He said that he could have known that Mr Scott was involved in the Mount Alison project in August 2007. He thought that Mr Scott had notified him of Burwell’s interest in doing a trial crush during February 2008. However, he said that he did not know who was to do the crush.
In addition to doing contract crushing for Scottco, he agreed that Scottco had hired out Streeters’ equipment for crushing to other entities. He described this as happening in relation to “smaller jobs, like subdivisional work.”[71] His explanation as to the nature of this arrangement was as follows:[72]
[71]T1-34, ll 35-36.
[72]Ibid, ll 40-52. This quote is in terms of the transcript. The word “cart” is probably a reference to “cut”.
“And in those instances, Scottco would form the agreement and the charge out rates and I take a cart of whatever the costs of the crushing was, wouldn’t they? - - Well, he’s in control of selling the product. I just gave – give him a price per tonne to crush it.
Yes? - - It’s – it’s his business, if you know what I mean.
So he organises the invoice and the charge out rates? -----?—To the clients, yes.
------doesn’t he? – Yes, that’s got nothing to do with me, no.”
(emphasis added)
He denied that Mr Scott was authorised to negotiate on his behalf in relation to hiring out equipment or having Streeters doing crushing on site at the Quarries. He said, “I make that decision”.[73] He also said that Mr Scott had obtained a job from a third party other than Rio Tinto, negotiated a costing for the crush, received an invoice from Streeters, and kept a cut for himself.[74] He explained this as follows:[75]
“Now is he authorised to do that or not? - - Well, it’s none of my business. I only do the contract crushing. His clients are his business. He sells road base … or concrete aggregate. I’m only contracted to that size and that space.”
[73]T1-46, ll 37-40.
[74]Ibid, ll 45-48.
[75]Ibid, ll 50-54.
However he said that while Burwell was Mr Scott’s client on the mining site it had nothing to do with Scottco on the crushing site. As he described it while Scottco and Burwell were engaged in a commercial relationship prior to 25 March 2008 related to mining and haulage, the crushing of the garnet from the mine, “was done as … a separate contractual thing. That’s what the meeting on the 25th was about, getting some costs off me for the crushing because … it wasn’t going out across the weighbridge, it wasn’t going to be a commercial thing. It was just a one off hire or crushing contract …It had nothing to do with the commercial side of running of Scottco.”[76]
[76]T1-47, ll 15-23.
Mr Streeter said that during the meeting on 23 March 2008 Mr Bessell wrote “all my costs down … in a book”.[77] Other than this, he had nothing in writing to say what his hire rates were or when to start. As he said, “it was all verbal.”[78]
[77]T1-48, ll 54.
[78]Ibid, ll 55-57.
He agreed that what was being sought was a window of opportunity in relation to the obligations when the trial crush could be done. He also agreed that apart from the V.S.I. Crushing Plant, the crushing was reasonably straightforward using the same machinery he used for the obligations.
Mr Streeter’s evidence was that his hire rate was brought to Mr Bessell’s attention at the meeting. He said this was a dry hire rate of “x amount of dollars per hour.”[79] He said that he couldn’t do a wet hire because he did not know when the job would be finished.[80]
[79]T1-39, ll 8-9, ll 13 (for example, $300 an hour for the cone crusher).
[80]Ibid, ll 25-27. According to his evidence a ‘wet hire’ was when his equipment was hired with his operators, and he fuels and services it. It normally involves a charge out rate for the use of the machine. ‘Dry hire’ is when the person who hires his equipment supplies the operators and fuel, and is responsible for any damage. The operator and fuel is included in the charge out rate. Unless there is a note saying “plus fuel” (T1-38, l 43 to T1-39, l 1).
Mr Streeter said that he knew prior to 25 March 2008 how much ore was to be crushed[81] and the actual working time was never going to be much.
[81]His evidence was that only 300 tonne was agreed on (T1-40, l 5).
He maintained that at the 25 March 2008 meeting he told Mr Bessell that there was a minimum 100 hour rate for the V.S.I. Crushing Plant. He also said that the information which he gave Mr Bessell about the hourly rate was verbal and not documentary.
His evidence was that no one would hire a V.S.I. Crushing Plant on a short term hourly rate only. He said that after the 25 March 2008 meeting, Mr Bessell must have confirmed the proposed charge out rates were okay because “he’s the only man I’ve ever had any contact with, and I didn’t go and order a V.S.I. without some verification that the job was on.”[82]
Mr Streeter accepted that at the end of this meeting he clearly indicated to Mr Bessell that he didn’t want to do the job. However he said:[83]
“… but we agreed we were going to do the job … Didn’t seem to phase him. He was quite happy that I was prepared to do the job.”
[82]T1-48, ll 19-21.
[83]T1-44, ll 31-36.
His evidence was that at this time there was only a vague idea of when they were going to do the crush. He believed that Mr Scott confirmed to him the date on which it was to occur. It was his recollection that Mr Scott came down to the crushing plant and asked if it was all right to do the crush “the following week after next, on the Monday and we agreed to that.”[84]
[84]Ibid, ll 43-55.
He said that other than the meeting this was hardly ever discussed with him, and “it was just with Brian Scott and Mr Bessell on when the garnet was brought down from the stockpile. When it was mined and brought down … it was obviously to everyone’s interest to get the test done.”[85]
[85]T1-45, ll 31-36.
Mr Streeter did not think he had any discussions with Mr Scott on 26 March 2008 about the estimated costs that would be charged to Burwell for his work because he outlined this at the meeting. He did not think that he had any discussion with Mr Scott about this from 26 March to 15 April 2008. In relation to this he said:[86]
“I don’t think I would have had an estimate on the cost because none of us knew the cost as I have said previously, but I would have had meetings with him over … our timed schedule of this crush and how it was going to effect our other crushing operations.”
[86]T1-46, ll 30-35.
Mr Streeter agreed that prior to the crush which took place on 16 April 2008, a pre-crush of under 300 tonne occurred on the previous day. He said this took no longer than three hours.
He believed it took two and a half days for his men to clear the plant and equipment to be used in the crush. This included cleaning the screens and walking it out of the application where it was being used for the obligations.
Mr Scott[87]
[87]T1-51, l 1 to T1-75, l 46.
Mr Scott confirmed that he was a director of Scottco which had operated the Yarwun Quarries for about 20 years for the purpose of crushing stone for road base or aggregate.
He said that Streeters had plant and equipment at the Quarries and did all Scottco’s crushing on a contract basis. This commercial relationship had existed for 10 or more years and had involved doing the Quarries’ crushing for about half of that period. His evidence as to the arrangement was:[88]
“… I blast the material and I get it ready and then he screens it, produces it … and then when it goes over the weighbridge when it’s sold, he gets paid and that’s how it works.”
[88]T 1-52, ll 27-32.
During his evidence in answer to my questions he explained this arrangement in more detail. He contracted Streeters for a price to do the crushing. He made his money by onselling the product through Goldings to Rio Tinto. At the end of the month the tonnes which had gone in trucks over the weighbridge were totalled. Scottco would then send Streeters a statement specifying this total. Streeters would then invoice Scottco which would then make payment.[89]
[89]T1-60, ll 5-53.
Mr Scott said that in late 2007 or early 2008 he met Mr Bessell who was looking for someone to work at the Mount Alison mine. Scottco exposed a couple of hundred tonne from there and over a period of time transported it to the Quarries for storage. It was still coming into the Quarries in the middle of March 2008.
He said that around March 2008 Mr Bessell asked him if he knew anyone who could crush the ore and he responded that it could be done by Mr Streeter.
His evidence was that he had other discussions with Mr Bessell from time to time about various crushing methods and how Burwell wanted it done and sampled. He described it as “an ongoing thing.”[90]
[90]T1-54, ll 23-28.
He recalled a conversation between Mr Bessell, Mr Streeter and himself. He thought it was 18 March 2008 because he had it in his diary. Although he later accepted that it was around 25 March 2008.[91] He responded to questions about this during cross-examination:[92]
[91]T1-66, l 55 – T1-67 l 1.
[92]T1-66, ll 3-33. See also T1-75, ll 15-46. I note that he said he always wrote prices down in case he forgot them.
“Okay, so are you in the habit of making diary entries on a different day from when the event occurred? - - - No, not as a rule, no.
Right? - - - There was a fair bit happening at that time though - - - -
Okay? - - - - - - - and I may have missed - - - - -
Because there was a fair bit happening - - - - -? - - Mmm
- - - - - are you saying that your notes aren’t correctly recorded on the correct day? - - In that case, no. Well - - - - -
So those notes, sorry, are you not recorded on the correct day? - - Those all the rates are written down right.
Mmm, but the note was not put on - - - - - -? - - On the correct date, no.
- - - - - on the right date. So when did you put those notes down? - - After the meeting.
On the 25th March 2008? - - It was the 25th, yeah, yeah.
Okay. So do I take it from that discourse that we’ve just had that the notes were put on after – sorry. That the notes were put on the 18th of March 2008 day because that was the only available space you had in your book or - - - - -? - - No, no that’s not correct. I obviously haven’t turned the pages properly as I wrote it down.”
Mr Scott said that the meeting was held in the weighbridge. He said that Mr Bessell came to see him here and then Mr Streeter came in. His evidence was that they had a discussion about the prices involved. From memory the only other topic of discussions was about the screens. This involved Mr Streeter wanting to supply them and Mr Bessell saying that Burwell would buy them. When this happened, Mr Streeter said, “if you mess up with the screens, then all my equipment will be parked up and you’ll have to pay that cost.”[93]
[93]T1-55, ll 25-27.
Mr Scott also remembered a conversation about the V.S.I. Crushing Plant. He said that this involved it being freighted from Brisbane and had a minimum 100 hour hire charge on it.
He wrote the rates down in his diary as follows:[94]
“… the V.S.I. was $190 an hour plus GST, wear and fuel, 100 hours minimum hour (sic). The 1300 cone was $300 an hour plus GST, wear and fuel. The jaw was $300. The 2100 was 160. The Stacker was 80. The excavator was 105 and the loader was 105. They were all plus wear and fuel and GST.”
As indicated above he said that he had written them down after the meeting, which he initially said was on 18 March 2008. In answer to my questions he said he would have written them on a piece of paper on the day of the meeting and then he wrote them in the note section at the back of the diary. He thought the notes were correct and accurate of the rates discussed at the meeting.
[94]T1-57, ll 56 – T1-58, l 3. The reference to “100 hours minimum hour” is reasonably to be interpreted as “100 hours minimum hire”.
Contrary to Mr Streeter’s evidence he said that with the exception of the V.S.I. Crushing Plant for which there was a minimum hourly requirement the other plant and equipment was only to be hired for the hours that it actually worked. Mr Cooke’s cross-examination about this was:[95]
[95]T1-67, ll 44 to T1-68, l 11.
“So for all intents and purposes your understanding of the meeting was that the defendant would only be charged for the hours the machine was used, wasn’t it? - - No, there was a minimum rate on it.
No, no. On the cone crusher, for instance? - - Yeah, that’s right, yeah. On the cone crusher.
And the jaw crusher? - - Because they were on site, yeah.
And the jaw crusher - - - - - ? - - Mmm, Mmm, - - - - - would only be hired - - - - - ? - - Mmm - - - - - or be charged for the hours in which it worked, wouldn’t it? - - Correct, yes. And that was the information that was provided on the meeting of the 25th March 2006, wasn’t it?” - - Mmm. Mmm”
He said that Scottco’s main job was the contractual obligations to supply gravel to Rio Tinto and that Bessell knew this. With reference to this Mr Streeter said if there was a delay “we would probably be late getting back to our other job, wouldn’t be able to supply it.”[96] He confirmed that the screens that were ordered by Burwell were the wrong size and had to be reordered.
[96]T1-57, ll 22-23.
Mr Scott said that there was a visit by people from Burwell at the time the garnet was crushed and found to be too fine for sand blasting purposes. He said that he had nothing to do with the crushing.
He denied doing this crushing for Burwell. He said his role was only to organise it. His evidence was that while he rendered an account for the mining he was neither asked for nor rendered an account for any crushing. In response to my questions he said:[97]
[97]T1-59, ll 45-50.
“… Did you enter into any agreement with Mr Burwell (sic) under which you were to be paid for the crushing that was done? - - No.
All right. Did you own any of the machinery on the site that was used for the crushing? - - No.”
He also replied to me as follows:[98]
“Were you planning to make any money out of this arrangement, or were you hoping to make any arrangement with Burwell? - - No, no.
All right? - - I did the mining for it which they paid me for and the rest was Clive’s.”
[98]T1-60, l 55 to T1-61, l 2.
Under cross-examination Mr Scott said that Mr Bessell communicated to him that if the project was viable “we would be allowed to price it” but the price would have to be competitive. He thought Mr Bessell told him this before 25 March 2008.[99]
[99]T1-61, ll 12-44.
He said that he became aware that Burwell wanted to do a trial crush when he first spoke to Mr Bessell in 2007 or early 2008. He said that Burwell wanted to cart it to the Quarries and crush it there. Mr Cooke then asked him the following questions about his role in the crushing:[100]
[100]T1-62, ll 29-37.
“Yes, and did you ever provide a quote in relation to a trial crush - - - - - ? - - No, I didn’t.
- - - - - for garnet - - - - - ? - - No.
- - - - - in 2007? - - No.
Okay. If the witness could - - - - - - ? - - I couldn’t because I didn’t have the equipment.”
However he was then shown a document which he agreed he had produced and was headed with facsimile information which suggested it was faxed from Scottco on 10 August 2008. This document was as follows:[101]
[101]Exhibit 9.
“Yarwun Quarrico
33 Hansen Crescent
Gladstone 4680
Ph/Fax 0749 782 395
Mobile 0427 794 067
Quote to crush garnet (trial)Mobilisation Demob: 4 shifts @ 5 hours @ $185 ph + GST = $4070
Hire Excavator $170 ph + GST
Hire D7 Dover $170 ph + GST
Hire Semi Tipper to haul ore to YQ $33 per tonne + GST
Crush product to 20-25 mm $20 per tonne + GST
Any queries give me a call
Brian Scott”
Notwithstanding the terms of this document he said “That was for the mine. That had nothing to do with the crushing.”[102] He said “They’ve got it wrong at the top here”.[103] He explained this as meaning:[104]
[102]T1-62, ll 50-51.
[103]Ibid, ll 55-56.
[104]T1-63 ll 1-4.
“Well, he’s got quote price to crush garnet, I think that referred to at the actual mine site at the time, because he did want to do it – he did want to do a test up there.”
The mine site referred to was Mount Alison. When it was put to him that this was a quote for a trial crush of garnet at the Quarries, Mr Scott responded that it related to screening the dirt out of it at this mine site. He said that Mr Bessell wanted the price to crush it there and bring it to the Quarries. According to his evidence:[105]
[105]Ibid, ll 39-41.
“All I could do was screen it, yeah I could take the dirt out of it, you know. I didn’t have a crusher.”
He said that he didn’t know how the word “crush” got there[106] and “That would have been to screen it, not crush it. I know the wording is wrong, hey.”[107] The cross-examination on this point concluded:[108]
[106]Ibid, l 57.
[107]T1-65, ll 40-42.
[108]T1-65, l 43-50.
“Okay, well I put it to you that they were seeking a quote as early as August 2007 - - - -? - - Mmm.
- - - - - and this was the quote that you provided for the crushing of ore - - - - - -? - - Mmm.
- - - - - - wasn’t it? - - It was, yeah, if you want to go like that, yeah.
Thank you? - - Very, very roughly one.”
Mr Scott thought that Burwell was talking about a couple of hundred tonne for the purposes of the trial crush. He described the chain of events which lead to Streeters being involved as follows:[109]
“… Len [Bessell] came to me and wanted me to crush it, I didn’t have the crushers. I said, “Streeters got the crushers there.” So, that’s how Clive got involved with it …”
[109]Ibid, T1-61, ll 52-55.
He accepted that in addition to the trial crush being conducted at his quarry, Burwell discussed the costings for the crush with him. Although he said that he didn’t want this and didn’t ask for it because it had nothing to do with him.[110]
[110]T1-69, ll 40-51.
He also accepted knowing Mr Longworth whom he supposed was Burwell’s consultant. In particular he agreed that he received the following email from Mr Longworth, recorded as being sent at 9.40 pm on 26 March 2008:[111]
[111]Exhibit 10. This was tendered during cross-examination of Mr Scott without objection. It is copied to other persons, including Geoff Williams, whom I infer was Burwell’s Managing Director (see para [72] of this judgment).
“Subject: Crushing & Screening Test – Ecomite
Dear Brian,
As discussed today, I am attaching a copy of budget maximum and minimum costs for the crushing and screening of the garnet bulk sample.
I realise these costs depend on the hire time but would like to do all we can to get the gear set up and hopefully process in a continuous operation.
Len Bessell has a copy of these estimates. Please let me know if you have any disagreement with the rates.
With reference to possible clay in the sample. If there is evidence of this in the primary crusher feed, exclude it as it may well impeded the final screening. If clay proves to be a problem in the mining with the developed project then we will need to dry the primary crusher feed so that it will report as dust in the undersize and not clog final 250 micron screen.
Feel free to call me and discuss if necessary.”
(emphasis added)
The attached budget document is headed:
“GOLDEN EAGLE (ML 80135) BULK SAMPLE FOR TEST EVALUATION CENTRE
ECOMITE PTY LTD
3 STAGE CRUSHING & SCREENING ESTIMATE RANGE
26-Mar-08 ”
Beneath this is a subheading, of “Hire Rates Yarwun Quarries” with a list of plant and equipment and hourly rates plus fuel, and also plus wear in some cases. This includes “VSI-Tertiary Crusher Hire” at a rate of “$190/hr + fuel + wear”. There is no reference to any “minimum hire rate”
There is then the following list:
“Crusher clean out, 2 men 8 hrs $1,000 Discussed with
+ pump + water Brian Scott
Locate primary and second crushers, $1,200 ” ”
6 hrs @ at $200/hr
Fit new screen decks $500 Economite estimate
Crusher wear $1,500 Economite estimate Yarwun to validate
Mobilise and demobilise VSI crusher $9,000 Economite estimate. At hire cost.”
This is followed by an “Upper estimate of costs” of $36,524 and a “Lower estimate of cost” of $24,862. These calculations are also made on the basis of an hourly rate with “Mob & demob VSI crusher” charged at $9000 in each case.
Mr Scott accepted that as stated in the email, Mr Longworth probably would have phoned him to discuss the pricing in terms of the top and bottom range for the upcoming crush.[112] He said that he did not go right through it. He also said that this is not what actually happened.[113]
[112]T1-69, ll 13-18; T1-69 l 58 to T1-70, l 2. Although at T1-72, ll 35-36 he said that Mr Longworth probably rang up and said he was sending an email.
[113]T1-70, ll 69-70.
He said that it was Streeters and not him who gave Burwell all the prices, and Longworth emailed him so he would pass it on to Mr Streeter, which he said he would have done. He described himself as “just a go between.”[114] However he did not remember passing it onto Mr Streeter personally. He said that his daughter would have done this. Although he conceded that he did not know whether she did or not.[115] His ultimate answers about this were somewhat confusing:[116]
“HIS HONOUR: That’s a question, really? - - I’m saying that I don’t remember passing it on.
MR COOKE: All right. And the reason why you didn’t pass it on was because you were organising the financial arrangements and the crushing time -----? -- That’s right.
----- for this project, weren’t you? - - That’s correct – that’s wrong. I only – the only deal I got out of it was to do the actual mining and the transportation. I got nothing out of the crushing.”
[114]T1-71, ll 1-12.
[115]Ibid, ll 20-32.
[116]T1-71, ll 44-54.
Although as set out above in Mr Longworth’s 26 March 2008 email there was no minimum hourly hire rate for the V.S.I. Crushing Plant, Mr Scott said that this was all arranged by Mr Streeter with Mr Bessell at the 25 March 2008 meeting and on numerous other occasions when he was at the Quarries.[117]
[117]T1-72, ll 1-20.
His evidence was that he did not think that he set the date on which the crush was to take place because as he was not doing the crushing it had nothing to do with him. However he accepted that he would have said to Mr Streeter, “We’ll probably do it next week when we finish in there and – and move everything out” or “we’ll probably do it next week or when we can.” He also said he would have told Mr Longworth the same thing.[118]
[118]T1-74, ll 20-57.
Mr Scott agreed that Mr Bessell communicated to him that he could neither agree nor disagree with the rates, but he was simply obtaining information from Mr Streeter and himself at the 25 March 2008 meeting.[119]
[119]T1-62, 11 10-13.
Mr Bessell[120]
[120]T1-79, l 40 to T1-99, 154.
Mr Bessell had approximately 47 years field experience in mining and geology since graduation.
He said that he was originally Burwell’s project manager for Mount Alison. However by March 2008 his role had changed. Mr Longworth had been brought into the project, on the authority of the Managing Director to take over the role of project manager. This is despite Burwell admitting in the defence that at all material times Mr Bessell was its servant or agent and acted as such in its dealings with Streeters, and was the project manager in their employ at the material time. Under cross-examination he told Mr Arnold that he had no reason to disclose this change in management to any person. He had no reason to tell Mr Scott or Mr Streeter of this change.[121]
[121]T1-86, l 28 to T-87, l 23
His evidence was that in about early 2008 he was requested by the project manager to go to the Quarries and get some prices for the various equipment for an upcoming crushing test. He said that it had previously been planned as a 100 tonne crush. However this was later changed to a 300 tonne crush.[122]
[122]T1-80, ll 1-10.
He said that he was dealing with Mr Scott of Yarwun Quarries for the purpose of receiving these costings. He also said that he received a quote from Mr Scott of $22,000 for the 100 tonne crush and he got a company work order of $24,000 to do this. He said that the “Quote price to crush garnet (trial)” document which is Exhibit 9[123] was part of the quote from Mr Scott for initial 100 tonne crushing. He said he received this quote in September 2007. This crush was to take place at the Quarries.[124]
[123]See para [106] of this judgment where the quote is set out.
[124]T1-80, ll 12-42.
Mr Bessell said that by March 2008 when his role had changed and he was no longer in charge of projects as such he was asked by Mr Longworth to get prices for the 300 tonne crush from Mr Scott and to transmit the hourly rates to him.[125]
[125]T1-80, ll 44-52; T1-83, ll 8-10.
As a result he had a meeting with Mr Scott in his office at the Quarries on 25 March 2008. Consistent with Mr Streeter’s evidence he said that during the meeting he took notes in his notebook of the various costs of individual pieces of equipment on an hourly rate. The notes[126] included a page which was headed “Yarwun Quarries April” and followed by what appears to be “4”. There also appear to be other figures which are indecipherable to me. Under a heading of “hourly rate” I interpet what is written as follows:
[126]A copy of three pages of the notebook was tendered without objection as Exhibit 11.
“1. Jaw = $300 + GST
2. Cone = $300 + GST
3. VSI = $190 + GST
4. Screen Hire = $160 hr + GST
5. Freight both ways on VSI est $4000
6. Screen purchase
7. Misc @ 15% +
8. Stacker @ $80 + GST
9. Escavator @ $105 + GST + Fuel Costs”
There is also a page headed “Screen” which I interpret as:
“1 MM ex Lincom
$1600 + GST + Freight
V.S.I. $190 + GST hr
+ Wear
+ Fuel
+Freight
Screen Hire $160/hr + GST
Cone $300 + GST
Jaw $300 + GST
Plus Fuel for both
Plus wear”
The third page appears to be concerned with screens. It contains references to “2100 series” and “Lincom Screener” but not to hire rates.
Significantly with the exceptions to the reference in Mr Scott’s notes[127] to “100 hours minimum” hire for the V.S.I. Crushing Plant the hourly rates for hire of the cone, jaw, stacker and excavator are the same in each set of notes. There is also reference in each to a rate of “160”. Mr Scott records this in relation to the “2100”. Mr Bessell records it for “Screen Hire”.
[127]See para [99] of this judgment.
By contrast Streeters’ invoice numbered 2352 claims different hire rates (excl GST) for the jaw ($280) and the excavator ($100). The claim for hire of the 2100T Screening Plant ($145) is also different.
Mr Bessell said that initially the meeting was between Mr Scott and himself. He said it was Mr Scott who gave him the information in relation to the hourly rates which are reflected in his notes.[128]
[128]T1-82, ll 32-33; ll 52-55.
His evidence as to Mr Streeter’s involvement was:[129]
“I think Brian and I had almost finished what we had to discuss and – and then Clive Streeter came into the meeting and it was a bit unsettling because there was some words that were spoken which would – should not have been spoken I would say.” (emphasis added).
Mr Cooke did not expressly ask Mr Bessell to articulate what was said.[130]
[129]Ibid, ll 35-40.
[130]His next question was “okay. And what were they? Oh, in relation to how long Mr Streeter was in the room - - - - - ?” (T1-82, ll 42-43). Accordingly before Mr Bessel had an opportunity to answer the first part of his question which was directed to what was said, he was asked another question which he answered.
Mr Bessell did not think that Mr Streeter was in the room for more than 20 minutes. As far as he could recall the only discussion with Mr Streeter was about screen sizes.[131] During cross-examination he said this was only a brief discussion which would have lasted a few moments.[132] When I asked him questions about this towards the end of his cross-examination he said:[133]
“I think the whole conversation centred around the screens and what he had in stock and what Brian could have got and it did take that long.”
Ultimately he told me that the discussion about screens ran for 20 minutes.[134]
[131]T1-82, ll 48-50.
[132]T1-91, ll 20-22.
[133]T1-97, ll 54-57.
[134]T1-98, ll 13-14.
He said there were no discussions about minimum hourly rates.[135]
[135]T1-82, l 57 to T1-83, l 6.
His evidence as to whether Mr Streeter gave him any indication at the meeting about his willingness to participate in a contract with Burwell was:
“There was no conversation of that type”[136]
And he said he did not know when he left the room that Mr Streeter was going to do the physical act of crushing.[137]
[136]T1-83, ll 14-15.
[137]T1-91, ll 13-18.
For his part, he said that he made no commitment to either Mr Scott or Mr Streeter about the willingness of Burwell to pay any money for the hire rates for the crushing project. He said that because he was there representing Mr Longworth for the sole purpose of getting prices for the individual pieces of equipment and transmitting them to Mr Longworth.[138]
[138]T1-83, ll 8-10; T1-99, ll 1-4; T1-99; ll 46-50.
Accordingly he said that following the meeting he emailed the information in relation to the costs to Mr Longworth and spoke to him by phone that night. A copy of this email was identified by him and became an exhibit in these proceedings.[139] The email is shown as being sent on 26 March 2008 at 9.53 am was said by Mr Bessell to be a true reflection of the meeting at the Quarries on the previous day.[140] It is as follows:
[139]Exhibit 12. This was initially tendered without objection, but subsequently objected to on the basis expressed at para [6] of Streeters’ reply, filed 9 December 2009, namely that it was self serving. Because it was expressly not objected to at the time of tender, I took the view that, the document being admitted as an exhibit, the issue was one of what weight I would give to it.
[140]T1-85, ll 53-54.
“Subject: update on crushing costs/plastic sheeting
Dear Sandy
I met yesterday afternoon with Brian Scott to get an update on the proposed crushing of our ore (300+) tonnes now at grass at the quarry.
The proposal put forward by Brian is that the primary Jaw crusher is in circuit with the Secondary crusher which in turn is in circuit with the Tertiary (VSI) crusher with oversize being returned to the Secondary crusher and returned to the VSI. The advantage of this is that there is no need for double handling and the product is delivered direct to one stock pile. Brian has suggested that we place the old used semitipper body as a receivable bin & using a bobcat work from this directly to a bagging frame.
As we discussed this will require the use of the new Lincome 2100 series screener (I have given you a quote on these screens in my email yesterday).
In regard to this we need to confirm a so a p as Brian has a window of opportunity to commence setting up on 4/5 April and given this date we will have to move fast to have everything ready. We will for instance have to have suitable 1 tonne Bulker bags on site (approx 150 bags). I have on inspection of the so called 2mm polypropylene sheeting @ Bunning’s found it to be unsuited to our purposes being tissue thin @ approx. less than .25 mm thick
Regarding the costs they are as follows;
1. hourly rate jaw crusher @$300 per hr + GST + fuel + Wear factor (unknown)2. hourly rate Cone crusher @$300 per hr + GST + fuel + wear factor (unknown).
3. hourly rate VSI crusher @$190.0 per hr GST + fuel + wear factor (unknown) + freight from & return to Brisbane (my quote on this in Sept last year was $4000.00 each way no doubt given the hike in fuel costs this will be 30% dearer.
4. Screen hire (Lincom 2100) @$160.00 per hr + GST + fuel
5. Stacker hire @ $80.0 per hr + GST + fuel
6. Excavator to load primary crusher @ $105.00 per hour + GST + fuel
7. Screen purchases (note it takes 4x5ft screens to span the 20 ft deck) & given we have to cater for 3 screen sizes i.e. Astm 20 Astm 60 & Astm 30 we will have to order 12 screens in total. Each screen varies slightly in cost but an indicative costs are Astm 60=$313 ea Astm 20 $331.00 ea & Astm 30 $320 ea.
Regarding crushing times through the circuit if it was already set up 300 tonnes should only take a couple of hours to process but given all the unknowns it is probably safer ground to expect several days the other factor I cannot cost at this stage is the Bob cat hire I would suggest that we allow say $80.0 per hr for say 30 hrs.”
It is apparent that the hourly rates quoted in this email are the same as Mr Besell recorded in his notes. They are also the same as those recorded by Mr Scott with the exception of the minimum hourly hire rate for V.I.S. Crushing Plant. Subject to this exception, these are also the same hire rates set out in Mr Longworth’s email to Mr Scott later on 26 March 2008.
Mr Bessell said that he never had another conversation with Mr Streeter after the 25 March 2008 meeting. He said, “I had not (sic) reason to discuss it with Mr Streeter.”[141] With reference to Mr Scott, he said the only conversations he had with him following the meeting were about the haulage of the ore from the site.[142]
[141]T1-86, l 5.
[142]Ibid, ll 11-14.
When cross-examined by Mr Arnold he said that leading up to April 2008 he was probably attending the Quarries once a month to discuss business with Mr Scott.[143] He said he only met Mr Streeter on the one occasion when he got the quotes. He could not remember seeing Mr Streeter at the Quarries on other occasions. To the best of his recollection Streeters were subcontractors to Scottco, and it did not interest him. However he conceded being aware of Streeters as an entity and that it had plant and equipment at the Quarries.[144]
[143]T1-87, ll 33-40.
[144]T1-88, ll 7-52.
Mr Bessell agreed that the Mount Alison project was important to him because he discovered the deposit there.[145] He said that he had an agreement with Burwell to make the project work and commercially exploit it. He described his interest, as “a possible financial interest.”[146] He also said that he hoped to see the project succeed and get a financial benefit from it in the longer term.[147]
[145]Ibid, ll 54-55.
[146]T1-89, ll 4-17.
[147]Ibid, ll 39-54.
He said that his understanding was that Scottco were the principal contractors to get the crushing done; and that to his knowledge Mr Streeter was the subcontractor to Scottco. He denied that Mr Scott told him that he had to talk to Mr Streeter about getting the crushing done.[148]
[148]T1-90, ll 4-30; T1-90, ll 41-43.
“Further regarding the VSI, it is hired for the short period to do our crushing and Brian is going to see if it can be put off to another week without invoking any penalties”.
The reference in the 7 April 2008 email to “meeting with Brian later today to get his and Streeter’s response about the extra hire we may have to face with the VSI” is to be construed in this context, rather than supporting the proposition that it had been agreed by Burwell to hire the V.S.I. Crushing Plant on the basis of 100 hours minimum hire.
[290]The text of these emails as quoted in evidence is set out at paras [140] and [142].
The factor which has been most persuasive in my rejection of Mr Scott’s evidence that he did not enter into an agreement on behalf of Scottco with Burwell under which it was to be paid for the crushing done, and Streeters were to be paid for this, concerns the contradiction by his facsimile of 10 August 2008 of his denial that he ever provided a quote in relation to a trial crush of garnet because he didn’t have the equipment.[291]
[291]See para [105] of this judgment where his evidence to this effect is quoted. The text of the facsimile which his Exhibit 9 is set out at para [106].
Despite this document which he accepted producing,[292] bearing the name and address of “Yarwun Quarries”, with the text above his name, being headed “Quote to crush garnet (trial)” and including the item:
[292]See T1-63, ll 6-8.
“Crush product to 20-25 mm $20 per tonne + GST”,
Mr Scott sought to explain this as a reference to screening the ore and not crushing it. He said that the wording is wrong. However he then somewhat confusingly seemed to accept that it was a roughly done quote for the crushing. The relevant cross-examination on this issue was:[293]
[293]See also para [107] where this is set out.
“Okay, well I put it to you that they were seeking a quote as early as August 2007 - - - - - ? - - Mmm. - - - - -
and this was the quote that you provided for the crushing of ore - - - - -? - - Mm.
- - - - - wasn’t it? - - It was, yeah, if you want to go like that, yeah.
Thank you? - - Very, very roughly one.”
In the circumstances I agree with Mr Cooke’s submission that the facsimile is evidence of an earlier quote which was given by Mr Scott to Burwell and extended to the crushing of garnet from Mount Alison. The quote is significantly lower than the amount claimed by Streeters on the basis of invoice numbered 2352. There is no suggestion that Streeters was involved in giving this quote. I also agree with his submission that Mr Scott’s attempt to explain this quote demonstrates his difficulty in admitting the nature of his relationship with Burwell where this is at odds with Streeters’ case.
I reject Mr Scott’s attempt to explain this quote as related only to screening the ore. I find that this was a quote from Mr Scott to Burwell during 2007 for Scottco to crush the ore.
This is an appropriate starting point for setting out the other circumstances which have caused me to find that it was Scottco and not Streeters which was the party to the contract for the supply of goods and services to Burwell in relation to the crushing trial.
The next circumstance is that Streeters relationship to Scottco was that of a subcontractor. As described by Mr Streeter, it did “contract crushing for them.” His evidence was that at the end of the month Streeters gave Scottco a tax invoice for the total weighbridge amount for the work it had done for Scottco. This was also the effect of Mr Scott’s evidence as summarised at paragraph [92] of this judgment.
Importantly Mr Streeter gave evidence that in addition to working on this basis for the purpose of the obligations there were other occasions when Scottco had hired out Streeters’ equipment for crushing to other entities. In those cases Mr Streeter gave Mr Scott a price per tonne to crush it, and Mr Scott would organise the invoice and charge out rates, which had nothing to do with him. The cross-examination about this was as follows:[294]
[294]T1-34, ll 34-52. Subsequently he confirmed at T1-46, ll 45-48 that Mr Scott had “obtained a job from a third party other than Rio Tinto and had a costing – and negotiated a costing for the crush and received an invoice from you and kept a cut for himself.” As indicated at footnote [72] the word “cart” where used in the second question is probably a reference to “cut”.
“And had Scottco ever hired your equipment out for crushing to other entities other than Rio Tinto? - - Yes, smaller jobs like subdivisional work and – and – and so forth, but this particular time, I’d only been back with Brian four to six months when this Rio job come. We worked together two to three years previous to that on a smaller application.
And in those instances, Scottco would form the agreement and the charge out rates and I take a cart of whatever the costs of the crushing was, wouldn’t they? - - Well, he’s in control of selling the product. I just gave – give him a price per tonne to crush it.
Yes? - - It’s – it’s his business, if you know what I mean.
So he organises the invoice and the charge out rates? - - - - - ? - - To the clients, yes.
-- - - - doesn’t he? - - Yes, that’s got nothing to do with me, no.”
Notwithstanding, Mr Streeter’s evidence that this arrangement occurred some years previously when he worked together with Scottco on a smaller application it is evidence that Scottco has engaged his services as a subcontractor on other projects in which they were involved.
This previous arrangement is also consistent with the earlier quote which was given by Mr Scott to Burwell, being for Scottco to crush the ore from Mount Alison. In that case as well Mr Scott could expect to be able to subcontract Streeters to undertake the crushing when a window of opportunity presented itself in undertaking the obligations. It could also be expected that Scottco would organise the invoice and charge out rates, it having nothing to do with Streeters. The previous arrangement is also consistent with Mr Scott on behalf of Scottco contracting with Burwell to undertake the trial crush which occurred on 16 April 2008, and then sub-contracting Streeters to undertake this work on its behalf.
As set out in paragraph [109] Mr Scott accepted that in addition to the trial crush happening at his quarry, Burwell discussed the costings of the crush with him. In addition I have previously referred to his acceptance of Mr Cooke’s proposition that he was organising the financial arrangements and the crushing time for the project, before he retreated from this position. Further as set out at paragraph [95] his evidence was that he had discussions with Mr Bessell from time to time about crushing methods and how Burwell wanted it done and sampled. As he described it, this was “an ongoing thing”.
It is not disputed that Mr Scott was present at the meeting about the project on 25 March 2010 where the prices involved were discussed. Mr Bessell was already present in the office with Mr Scott when Mr Streeter was asked to attend the meeting. As Mr Streeter said, “I was made aware that he was up the office and I came up”.[295] He said he would have been contacted about this by Mr Scott or his daughter over the radio or by mobile phone.[296]
[295]T1-33, ll 48-49. Mr Bessell’s evidence was that initially the meeting was between Mr Scott and himself, see para [124].
[296]Ibid, ll 52-53.
Importantly, Mr Streeter accepts that he didn’t want to do the job. In considering the significance of the evidence concerning this, it is relevant to commence with the manner in which Burwell pleaded its case. As set out in paragraph [19] Burwell says that at the 25 March 2008 meeting Mr Scott informed Mr Bessell that because Scottco did not possess a V.S.I. machine it would have to hire the machine itself or outsource the hiring to Streeters and recommended Burwell engage Streeters, with whom he had prior dealings, to hire the required plant and equipment. It also says that half way through the meeting, Mr Streeter interrupted it, advising Messrs Bessell and Scott that he did not want to enter into any agreement with Burwell. As particularised, he burst into the meeting and said words to the effect of, “I don’t want anything to do with those cunts in Sydney. I don’t want to move any of my equipment from where its been set up.” As a consequence of these comments, Mr Bessell informed Mr Scott that Burwell did not want to enter into a hire agreement with Streeters and that if the project was to continue, Scottco would have to supply Burwell with the plant and equipment necessary to conduct the garnet crushing trial.[297]
[297]Mr Cooke maintained this position in his statement of the facts in the Submissions on behalf of the Defendant, dated 23 March 2011, paras [6] and [7].
Consistent with this pleading Mr Scott gave evidence of the chain of events which he said led to Streeters being involved as follows:[298]
“… Len [Bessell] came to me and wanted me to crush it, I didn’t have the crushers. I said, “Streeters got the crushers there.” So, that’s how Clive got involved with it …”
[298]See also para [108].
As stated at paragraph [58] Mr Streeter denied using the words attributed to him as set out in the third dot point of paragraph [19]. Mr Bessell did not expressly attribute these words to Mr Streeter. His evidence was:[299]
“I think Brian and I had almost finished what we had to discuss and – and then Clive Streeter came into the meeting and it was a bit unsettling because there was some words that were spoken which would – should not have been spoken I would say.” (emphasis added).
As I have set out in footnote [129] Mr Cooke having asked Mr Bessell what was said, diverted to another question before the answer was given.
[299]See also para [125].
Whether or not in these circumstances it is correct to proceed on the basis that the words attributed to Mr Streeter in the pleading are to be implied into Mr Bessell’s evidence, what is relevant is the thrust of the pleading was that Mr Streeter said words to the effect that he did not want anything to do with the job and his evidence as set out at paragraph [57] was also that he didn’t want to do it, saying to Mr Bessell that “I would not be embarrassed if he brought in other crushing plants ‘cause I am too busy.”
Although it is to be accepted that Mr Streeter said “but we agreed we were going to do the job”, this was said in the context of the following cross-examination:[300]
[300]See also para [84].
“MR COOKE: No. Now, previously, you’ve given evidence that you didn’t want to do this job. At the end of the meeting on the 25th March 2008 you clearly indicated to Mr Bussel [sic] that you didn’t want to do this job, didn’t you? - - I did, but we agreed we were going to do the job.
Okay. Now, was that – how did Mr Bussel communicate that to you? - - Didn’t seem to phase him. He was quite happy that I was prepared to do the job.”
The inconsistency within these answers is readily apparent, and taking this into account together with the reasons I have given, I prefer Mr Bessell’s evidence, when asked whether Mr Streeter gave him any indication at the meeting about his willingness to participate in a contract with Burwell, that “There was no conversation of this type.”[301] Mr Bessell also said that he did not know when he left the room that Mr Streeter was going to do the physical act of crushing.[302] This is not inconsistent with Mr Streeter remaining involved in the discussion centred around the screens. It would be reasonable to expect that a person, such as Mr Streeter who had expertise in this area would be given the opportunity to express his views on this matter, even if he had made it clear that he did not want the job. It is also not inconsistent with Mr Scott on behalf of Scottco, which had the commitment to the obligations, to subcontract Streeters to undertake the garnet trial crush on its behalf at a time convenient to the obligations. It was in this context that Mr Bessell’s evidence with reference to the day of the trial, that he knew Mr Streeter was responsible for getting the V.S.I. Crushing Plant in and was committed to doing the crushing, must be understood.[303]
[301]See para [128] It is also relevant that Mr Streeter’s evidence he told Mr Bessell that he would not be embarrassed if he brought in other crushing plants “‘cause he was too busy” was given in answer to Mr Arnold’s question about how the meeting came to an end.
[302]Ibid.
[303]See para [143].
I also accept Mr Bessell’s evidence that he made no commitment to either Mr Scott or Mr Streeter at this meeting about Burwell’s willingness to pay any money for the hire rates or the crushing project; and that he was there representing Mr Longworth for the sole purpose of getting prices for the individual pieces of equipment and transmitting them to Mr Longworth.[304] Despite the pleading on behalf of Burwell admitting that at all material times Mr Bessell was its servant or agent and acted as such in its dealings with Streeters, and further says he was the project manager in their employ at the material time, Messrs Streeter’s and Scott’s evidence was that they knew Mr Bessell was simply obtaining information on behalf of his superiors during the 25 March 2008 meeting. Mr Streeter said the main part of the meeting was the rates and charges “because naturally [Mr Bessell] has got to report back to his superiors, for want of a better word, what roughly the costs are.”[305] Mr Scott agreed that Mr Bessell communicated that he could neither agree nor disagree with the rates but was simply obtaining information from Mr Streeter and himself at that meeting.[306]
[304]See para [129].
[305]T1-30, ll 27-30.
[306]See para [115].
In these circumstances I find that the contract for the supply of goods and services to Burwell in relation to the crushing trial was not formed at that meeting.
It is therefore relevant to have regard to what happened in the period between that meeting and the trial.
As discussed, Mr Bessell emailed the information received at the meeting in relation to the costs to Mr Longworth at 9.53 am on 26 March 2008. I have already expressed the view that there is no reason to conclude this email was a fabrication or misrepresentation of what was discussed at the meeting.[307] This email as set out at paragraph [130] advises Mr Longworth of discussions by Mr Bessell with Mr Scott and not with Mr Streeter. For example it commences, “I met yesterday afternoon with Brian Scott to get an update on the proposed crushing of our ore (300+) tonnes now at grass at the quarry.” It then refers to “The proposal put forward by Brian …,” “Brian has suggested that …” and “In this regard we need to confirm a so ap as Brian has a window of opportunity to commence setting up on 4/5 of April.”
[307]See para [239].
Mr Longworth’s subsequent email sent at 9.40 pm with its attached budget document, was directed to Mr Scott who agreed that he had received it.[308] It commenced, “Dear Brian, As discussed today” and included, “Please let me know if you have any disagreement with the rates.” The attached document had a subheading “Hire Rates Yarwun Quarries”. Mr Scott through Scottco is the proprietor of Yarwun Quarries. The subheading contained no reference to “Streeters Earthmoving”.
[308]See para [110] where the text of the email is set out.
Mr Scott’s evidence was that the purpose of this email was foreshadowing raising an order on Mr Scott and for Burwell to recognise that it was something for which a precise figure as opposed to a range could not be set because of the unknowns of the job.[309]
[309]See para [152].
He said the reference to “As discussed today” was to his speaking on and off to Mr Scott obtaining rates and estimating the time.[310] His evidence was that he never had contact with Mr Streeter except for one short conversation on the day of the crush.[311]
[310]See para [153].
[311]See para [150].
Mr Scott accepted that as stated in this email, Mr Longworth probably would have phoned him to discuss the pricing in terms of the top and bottom range for the upcoming crush. Although he said that he did not go right through it, and somewhat confusingly said this was not actually what happened.[312] As discussed at para [112] of this judgment he described himself as “just a go between”, but gave somewhat confusing evidence about whether he had passed this email and its attachments to Mr Streeters. The reliability of his evidence about this is undermined by Mr Streeter’s evidence in responding to Mr Cooke’s cross examination:[313]
“… Is Mr Brian Scott authorised to negotiate on your behalf in relation to hiring out your equipment or having the company doing crushing on-site at the quarry? - - No, I make that decision.”
In these circumstances I do not accept Mr Scott’s evidence that he was acting as a “go between” or agent on behalf of Mr Streeter or Streeters at any time in his dealings with Messrs Bessell and Longworth on behalf of Burwell.
[312]See para [111].
[313]T1-46, ll 37-40.
Given my preference for Mr Longworth’s evidence to that of Mr Scott I also accept that on a date, which he thought was 4 April 2008 he spoke to Mr Scott to confirm they were on the same wavelength and on this occasion they confirmed the various rates they were working to.[314] I am confirmed in this view by the unchallenged evidence that when he was giving evidence about this conversation, his memory was refreshed from fairly crude notes taken of it. Although Mr Longworth refers to Mr Scott being unsure of one thing and not making a decision on another, his evidence was that Mr Scott did not object to one of the figures. The fact that Mr Longworth was not purporting to suggest that he got a decision from Mr Scott on every issue discussed enhances the credibility of his evidence.[315]
[314]See para [153] and [155].
[315]See para [156].
Consequently I have no hesitation in accepting Mr Longworth’s evidence that he and Mr Scott were agreed to go ahead and the purpose of the discussion was to try and formulate an order; and there was an understanding with Mr Scott that they were contracting with him to undertake the crushing trial.[316]
[316]See paras [157] and [158].
Mr Bessell’s emails of 5 April and 7 April which were relied upon by Mr Arnold in cross-examination also support the arrangements concerning this trial being made with Mr Scott rather than with Mr Streeter. The 5 April email includes:[317]
[317]See para [142] where the full text of the email as quoted in evidence is set out.
“I have been meeting with Brian Scott and informed him of the monumental stuff up by Lockers. Brian had to have a meeting with his partner, Streeter, and I’ve only now had a call from Brian. … Further, regarding the VSI, it is hired for the short period to do our crushing and Brian is going to see if it can be put off for another week without evoking any penalties.” (emphasis added)
The 7 April email includes:[318]
“I will be meeting with Brian later today to get his and Streeter’s response about extra hire we may have to face with the VSI.” (emphasis added)
The fact of Mr Scott consulting with Mr Streeter is consistent with his subcontracting Streeters to undertake the crushing trial pursuant to Mr Scott’s agreement on behalf of Scottco with Burwell to provide goods and services to it in relation to the crushing trial.
[318]See para [140] where the full text of the email as quoted in evidence is set out.
It is also relevant that, although Mr Scott’s evidence was equivocal as to whether he set the date on which the crushing was to take place, initially saying that he did not think he did so, he nonetheless accepted that he would have said to Mr Streeter, “We’ll probably do it next week when we finish in there and – and move everything out” or “we’ll probably do it next week or when we can.” He also said he would have told Mr Longworth the same thing.[319]
[319]See para [114].
For completeness I mention the undisputed evidence that in addition to the ore from Mount Alison having been stored at Scottco’s quarry, it was also crushed here.
It is having regard to this accumulation of circumstances that I find that there was no intention to create a legally binding relationship between Burwell and Streeters as opposed to Scottco. Therefore it was Scottco and not Streeters which was the party to the contract for the supply of goods and services to Burwell in relation to the crushing trial.
In coming to this conclusion I have also had regard to the communications between Mr Streeter and Messrs Longworth and Williams on behalf of Burwell. I refer to Mr Longworth’s letter of 28 April 2008 in response to the job history and invoice numbered 2352, Mr Streeter’s response of 8 May 2008 and Mr William’s letter of 27 May 2008. This correspondence is set out at paragraphs [70] to [72] of this judgment.[320]
[320]I have particularly had regard to Mr Arnold’s submissions as set out in dot points 4 to 6 of para [174], and also para [181] with reference to Exhibits 7 and 8.
A striking feature of Mr Longworth’s letter of 28 April 2008 is that the first area of concern raised with Mr Streeter’s invoice, commences with these words:
“The 100 hours minimum hire for the VSI machine. I was not made aware of a minimum hire and in fact discussed the likely test time with Brian Scott, of one or two days, depending on the ease of crushing the garnet.” (emphasis added)
This is consistent with Mr Longworth’s position that there was never an agreement for there to be a 100 hour minimum hire for the V.S.I. Crushing Plant. More importantly in the present context it confirms Mr Longworth’s evidence that his discussions were with Mr Scott. This reinforces the conclusion that I have reached above as to who were the parties to the contract. There is no reason to conclude that Mr Longworth was attempting to fabricate or misrepresent this position in his correspondence.
Further, having regard to my view that Mr Longworth is a credible and reliable witness. I accept his explanation that this was merely an introductory letter to start negotiations and was not intended to be exhaustive.[321] Although his evidence was that these negotiations were to be started with Mr Streeter, this must be considered in the context of his other evidence that he commenced dealing with Mr Scott about his issues with the invoice, and it was Mr Scott who suggested he contact Mr Streeter.[322] He also said that he had no difficulty with Streeters being the entity which sent the invoice, given his understanding that it was the subcontractor to Mr Scott.[323]
[321]See para [167].
[322]See para [160].
[323]See para [161].
In my view the explanation for his entering into a dialogue about the particulars of the invoice, is the same as he gave for Mr Williams directing his offer to Mr Streeter. That is the communications were really regarded as being made to Mr Scott, in circumstances when it did not seem remarkable to Messrs Longworth and Williams that the dialogue about the issues was being conducted at Mr Scott’s suggestion by the person who undertook the work for Streeters to which Mr Scott had subcontracted the crushing trial on behalf of Scottco.
I do not consider that this derogates in any way from the effect of the communications between the meeting of 25 March 2008 and the crushing trial having been directed to Mr Scott, as confirmed by Mr Longworth’s correspondence of 28 April 2008. Later it simply became convenient to communicate with Mr Streeter both as the person who sent the invoice and whom had been nominated by Mr Scott to discuss the issues arising from it.
I agree with Mr Cooke that Burwell should not be criticised for taking a commercial view of the negotiations, by endeavouring to resolve the issue on a commercial basis as quickly as possible, particularly by doing so through communications with the person suggested by Mr Scott, and who was in any event the person who undertook the work for Streeters to which the crushing trial had been subcontracted by Mr Scott on behalf of Scottco.
Accordingly these communications do not alter my view that it was Scottco and not Streeters which was the party to the contract for the supply of goods and services to Burwell in relation to the crushing trial.
As I have also found this contract was not formed at the 25 March 2008 meeting.[324]
[324]See para [259].
I consider that the contract was formed during the conversation between Messrs Longworth and Scott, which Mr Longworth thought was had on 4 April 2008.
As Mr Longworth said from that conversation they were agreed to go ahead and the purpose of it was to try and formulate an order. The specific evidence to this effect was:[325]
“MR COOKE: No. No. From that conversation what, if any, agreement was there to proceed with the crush or the trial crush? - - I - I - we - we - we were - agreed to go ahead; and the purpose of this discussion was really to try and formulate an order.”
[325]T1-105, ll 44-48.
As a result he described an understanding between Burwell and Mr Scott that it was contracting with Mr Scott to undertake the crush, and it would be paying for it on what he referred to as some sort of quantum meruit hire basis He said that while the amount was to be agreed they were homing in on a price range between the higher and lower estimate.[326] I take this to be a reference to the upper and lower estimates of cost in his 26 March 2008 email.
[326]See para [158].
In my view there was an offer by Burwell to Scottco involving a promise by it to pay Scottco a sum in return for Scottco supplying it with plant and equipment at the prescribed charge out rate on a time costed basis for the time those items were in use, that sum being of a quantum within the range of the higher and lower estimate specified in Mr Longworth’s 26 March 2008 email. That promise extended to the associated services and provided sufficient consideration to enable Scottco to sue on the promise to supply the plant and equipment and those services.[327] The agreement was complete, with consideration and an intention to create legal relations between the parties. In my view they fixed a price by a measure the law would enforce after full or substantial performance by Scottco. It was within this range that Scottco could render an invoice to Burwell. As Mr Cooke submits it was up to Scottco to ensure that its subcontractors knew of this range and could perform their tasks within it.
[327]Lawbook, The Laws of Australia (at 31 August 2006) 7 Contract: General principles, ‘7.9 Remedies’ [7.9.1920], footnote 1.This is agreement extended to the supply of the associated services, i.e. the provision of the labour and supply of fuel.
Even if the agreement was not complete at the time of this conversation it was complete when the trial crush was commenced on 16 April 2008. Because even if Scottco had not accepted Burwell’s offer prior to this, it did so by supplying the plant and equipment together with the associated services, by undertaking the trial crush through Streeters as its subcontractor.
It was at least an implied term of this contract that on completion of this work, Scottco had a right to be paid reasonable remuneration by Burwell. Again this was a sum within the range of the higher and lower estimates specified in Mr Longworth’s 26 March 2008 email. This was a sum capable of objectively reasonable calculation, and was not a matter left entirely at large.[328]
[328]Ibid.
This is the same basis as Mr Arnold’s alternative argument that even if the court finds there was no contract in existence between Streeters and Burwell, it would find that there was an express agreement to do work for a reasonable sum, giving rise on completion of the work to reasonable remuneration.
However as I have found there was no such express agreement in existence between Streeters and Burwell, but rather such agreement was between Scottco and Burwell.
In Dunlop Pneumatic Tyre Co Ltd v Selfridge Co Ltd Viscount Haldane LC stated that a principal not named in the contract may sue upon it if the promisee really contracted as his agent. He also recognised that in order to entitle him to sue, he must have given consideration either personally or through the promisee, acting as his agent in giving it.[329]
[329][1915] AC 847 at 853 as cited in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 128-129 per Brennan J.
Similarly Deane J said in Trident General Insurance Co Pty Ltd v McNiece Bros Pty Ltd, if the promisee contracts as agent for a disclosed or undisclosed principal, the principal will ordinarily himself be, for the purposes of the requirement of privity, a party to the contract.[330]
[330](1988) 165 CLR 107 at 145.
However in this case for the reasons I have given at paragraph [265], I find that Mr Scott was not acting as “a go between” or agent on behalf of Mr Streeter or Streeters at any time in his dealings with Messrs Bessell and Longworth on behalf of Burwell. Therefore Streeters did not become a party to the contract on the basis that Mr Scott or Scottco contracted as his agent.
As I have stated in paragraph [286] I have rejected the alternative basis for Streeters’ claim that there was an express agreement between Streeters and Burwell for Streeters to do work for a reasonable sum which gives rise, on the completion of the work to reasonable remuneration.
Mr Arnold’s submission made clear that this alternative claim was not based on the principles of restitution. However for the purpose of completeness, I also address Streeters’ claim on the assumption it was an action for recovery on the quantum meruit, involving a claim for restitution or one based on unjust enrichment.
In Pavey & Matthews Pty Ltd v Paul the High Court held that the true foundation of the right to recover on a quantum meruit does not depend on the existence of an implied contract but on a claim to restitution or one based on unjust enrichment.[331]
[331](1987) 162 CLR 221 at 227 per Mason and Wilson JJ with reference to the reasons for judgment of Deane J in that case; see also Dawson J at 269.
Deane J in his reasons for judgment said:[332]
“What the concept of monetary restitution involves is the payment of an amount which constitutes, in all the relevant circumstances, fair and just compensation for the benefit or “enrichment” actually or constructively accepted. Ordinarily, that will correspond to the fair value of the benefit provided (e.g. remuneration calculated at a reasonable rate for work actually done or the fair market value of materials supplied).”
[332]Ibid at 263.
However as stated in Polhmann v Harrison by Fitzgerald P and White J the essential basis for such a claim is that no enforceable contract exists and acceptance of the work by the party for whom it was performed.[333] As Pincus JA said with reference to the facts of that case:[334]
“A vital factor in the present instance, which allowed the builder to recover on a quantum meruit basis for the value of work performed less progress payments and deductions for faulty workmanship, was that any contract either with K.A. Holmes or with Pohlmann (if it existed) was unenforceable. If an enforceable contract existed between the Harrisons as owners and a party who was not the actual builder then the builder would not be entitled to succeed on a quantum meruit basis against the owner. The builder’s remedy would then have been against the party with whom the owner had contracted.” (emphasis added)
[333](1993) 12 Aust Cons LR 80 at 82.
[334]Ibid at 83.
Applying this to the present case, because I have found that there was an enforceable contract existing between Burwell and Scottco, a quantum meruit claim on this basis is not available to Streeters.[335] The remedy for Streeters would be against Scottco which has contracted with Burwell and subcontracted to it the supply of the goods and services required under the contract.
[335]I also consider that Burwell accepted the work performed by Scottco under the contract through Streeters as its subcontractor.
It has not been argued on behalf of Streeters that s 55(1) of the Property Law Act 1974 (Qld)[336] which extends the right to sue the promisor to third party beneficiaries who meet certain requirements, applies to this case. Therefore I have not considered it.
[336]This provides that:
“A promisor who, for a valuable consideration moving from the promisee, promises to do … an act … for the benefit of a beneficiary shall, upon acceptance by the beneficiary, be subject to a duty enforceable by the beneficiary to perform that promise.”
Mr Arnold also relied on the failure of Burwell to join Scottco as a party to the proceedings under rr 62 and 69 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).
UCPR 62 provides:
“62 Necessary parties
(1)Each person whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in a proceeding must be included as a party to the proceeding.
(2)The court may order a person to be included as a party whose presence as a party is necessary to enable the court to adjudicate effectually and completely on all issues raised in the proceeding.”
UCPR 69 provides:
“69 Including, substituting or removing party
(1)The court may at any stage of a proceeding order that –
…
(b)any of the following persons be included as a party –
(i)a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding.
(ii)a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.”
I agree with Mr Cooke that these rules do not require Burwell to join a party. Rather, their purpose is for the court and any party, including Streeters to join a party. In this case, as he submits, the pleading as to whether a contract has been formed between Burwell and Scottco as opposed to between Burwell and Streeters has been in existence for some time. That time is since the Defence was filed on 12 November 2008. In those circumstances I agree it was a matter for Streeters as to whether to join Scottco as a party, in circumstances where, as I have found there was an enforceable contract between Burwell and Scottco, the remedy for Streeters is against Scottco. As noted on behalf of Scottco this was not done even when filing the Amended Statement of Claim. In any event, Mr Scott being called as a witness, I do not consider that Scottco’s presence as a party has been necessary for me to adjudicate effectually and completely on all issues raised in and in dispute in the proceeding.
In my view it was also unnecessary in these circumstances for Burwell to lead evidence of any communication, prior to filing the defence to Streeters’ claim, in any terms that the money claimed by Streeters was not owed to it, but was owed to Scottco.
I also consider that it was not necessary for Burwell to lead evidence about any attempt to either illicit an account from Scottco or to pay what it says is owing to it or Mr Scott, in circumstances where after invoice numbered 2352 had been received Mr Longworth commenced dealings with Mr Scott about the issues he had with it on behalf of Burwell, and it was Mr Scott who suggested he contact Mr Streeter about this. Therefore Burwell was entitled, as Mr Longworth said to regard these communications with Mr Streeter as being made to Mr Scott on behalf of Scottco. In my view Burwell could do nothing more in the circumstances to attempt to resolve the account with Mr Scott or Scottco.
Conclusions and Orders
For these reasons I conclude that Scottco and not Streeters was the party to the contract for the supply of goods and services to Burwell in relation to the crushing trial.
I am therefore not satisfied on the balance of probabilities that Streeters was a party to this contract.
I am also not satisfied in these circumstances that there was an express agreement in existence between Streeters and Burwell for Streeters to do work for Burwell for a reasonable sum, giving rise on completion of the work to reasonable remuneration.
Further I am not satisfied that a quantum meruit claim is available to Streeters on the basis of restitution or unjust enrichment.
In these circumstances it is not necessary for me to consider any of the other issues raised by the parties.
Accordingly the order of the court is:
· claim dismissed
I will hear the parties in respect of the costs of the claim.
0
2
2