Sweet v Hyland t/as Nerang Liquidation Centre

[2014] QCAT 603

CITATION: Sweet v Hyland t/as Nerang Liquidation Centre [2014] QCAT 603

PARTIES:	Carolyn Elizabeth Sweet (Applicant)
v
Trevor Hyland t/as Nerang Liquidation Centre (Respondent)

APPLICATION NUMBER: MCDO620/14

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 7 November 2014

HEARD AT: Southport

DECISION OF: Member Mc Donald

DELIVERED ON: 18 November 2014

DELIVERED AT: Southport

ORDERS MADE:	1.    The respondent shall pay the applicant $99.00 forthwith.
CATCHWORDS:	Refund of monies paid – compensation – parties to a contract

APPEARANCES:

APPLICANT: Carolyn Sweet

RESPONDENT: Trevor Hyland

REPRESENTATIVES:

RESPONDENT: Represented by agent Gary Frazer

REASONS FOR DECISION

1. Ms Sweet sought refund of monies paid to the Respondent for the supply of kitchen benches, arguing the doors were not those for which she contracted. She alleges the specifications were fraudulently altered by the respondent’s Manager Mr Frazer. She sought compensation for the value of replacement doors in the amount of $6,651, and compensation for door handles $250 plus labour costs of installation. She further sought costs of compensation for plumbing costs of $99 to reinstall a faulty tap originally supplied by the Respondent. She further argues that the incorrect plan has resulted in unnecessary and unsightly masonry joins to the bench top and seeks compensation of $3,740 to replace the bench top and a further $800 to retile. In addition she claims the application fee of $294.60, copying costs of $33.60, and witness fees of $36.40. The total of her claim was $11,904.

2. The Respondent denies liability for the doors or bench top, but accepts the tap was faulty.

CUPBOARDS

1. Ms Sweet’s primary complaint was in relation to the installation of door panels and door handles that she states she did not select. She provided the Tribunal with sworn evidence that she attended the premises of Nerang Liquidation Centre on 10 February with her friend Mr Ashleigh (Ash) DeCarteret. On that occasion she met with Phil Porter, who showed her a range of door panels in the shop. Ms Sweet indicated she was not impressed by the range, and she stated that Mr Porter showed her an alternative that was hidden at the back of the showroom. She said Mr Porter showed her the panel identified in photograph at “CS13” of her material an indicated it could be provided in the finish and colour she liked Whisper White Satin.  

2. She noted in her evidence that this was not a standard sample and a representation was drawn on the contractual document identified as “kitchen contract” and signed by her on 10 February 2013, together with a deposit of $1,100. The document at “CS1” of her material identified ‘Colonial doors as per timber sample’, and ‘Colour Whisper White Satin’. She also was unimpressed by the range of door handles and left the selection open to be advised at a later date, the document recording this specifically.

3. She advised that she authorised Ash DeCarteret to approve the plans and measurements once they were completed. She indicated that the Manager of the Nerang Liquidation Centre, Mr Frazer, posted the plan to her on 4 March 2013, and this noted no entry for Door Profile or Door handles. She advised that Mr DeCarteret checked the measurements and returned two days later signing the plan.  Ms Sweet said that the document signed by Mr DeCarteret on 6 March 2013 had amendments from the document provided on 4 March 2013, specifically noting the Door profile as ‘Colonial’ and the Door handle to remain ‘TBA’.  She asserted these changes were made in Mr Frazer’s handwriting. This document is filed at “CS3” of Ms Sweet’s material.

4. On 8 March 2013 she stated she received a copy of the signed plan and a notice of the kitchen order, together with receipt for payment. She stated that she did not look closely at the plan until some time later. She submitted that the document received on 8 March 2013 had been altered by Mr Fraser whom she stated had added liquid paper to change the door profile from Colonial to New Square, and adding a drawing that had not been initialled by either herself or Mr DeCarteret. She stated that Mr Frazer had told her he made the amendment after Mr DeCarteret left the premises. The document at “CS5” of her material notes a drawing of the new square design and states ‘as selected in showroom 6/3/13 with Ash. Gary’.

5. She advised that she was overseas when the bench was installed and was sent an emailed photo by Mr DeCarteret. She advised the Tribunal that she had authorised him to oversee installation on 25 May 2013. She stated that at that point she became aware that the installed product did not have the doors or handles she selected. She indicated on her return she attended the premises on 4 June 2014 and advised Mr Frazer of the error. She claimed Mr Frazer advised that there was no error and Mr DeCarteret had chosen the panel. Mr Frazer had also advised her that there was no panel as she claimed she had selected in the show room.

6. Mr Frazer gave evidence that the company stocks only four styles of custom built door profiles, being flat, bevelled, colonial corner and colonial new style. Mr Frazer stated that Nerang Liquidation Centre sell only what the suppliers give them to sell. He could not account for whether Mr Porter had introduced a new product to the clients but noted Mr Porter had been a contractor and worked for other firms also.  He indicated that after inquiries with their supplier in August 2013, they subsequently identified a door known as “traditional farm house” and offered this door to Ms Sweet, and had offered to provide these to Ms Sweet at a cost of $2,500 being the cost of supply of the product. He contended that Mr DeCarteret had selected the new square colonial and was supplied this. 

7. The respondent argued that Mr Ash DeCarteret was party to the contract an authorised the changes to the plan on 8 March 2013. Further, the respondent contends that the contract between them specified at Clause 3 that customers must notify the company within 24 hours of delivery any complaints against the delivered goods. Mr Frazer provided evidence that no complaints were received in that timeframe. On the contrary the goods were delivered to Mr DeCarteret and he indicated he was pleased with the delivery, and made full payment accordingly. The Respondent relies upon the contract to deny any liability of the kitchen cupboards doors and handles. 

8. Gary Frazer told the Tribunal that he believed that the contracting parties were Mr DeCarteret and Ms Sweet and that contractual documents and receipts filed with the Tribunal included his name. He said on 4 March 2014 he posted the plan to them for acceptance of the specifications. He claimed that on 6 March 2014 Mr DeCarteret attended the store with a signed copy of the plan. Further, he had asked him on that day to choose the door profile and handle for the cupboards as it was absent from the plan. He said he presented 3 options to him for the profile, being colonial, curved or new square (identified in photos at item 12 of his material). He stated that he liked the square design being, “New Square” style and picked the post and rail handle.  He said he wrote this selection in the plan, but neglected to have Mr DeCarteret initial the change. He said he copied it and gave it to him. Mr Frazer vehemently denies that he altered the document without authority.

9. Under cross examination Mr Frazer had difficulty responding to why the change was not initialled but strongly denied any fraudulent conduct. He acknowledged it had been an oversight but that he was authorised by the verbal statement that Mr DeCarteret had made in selecting the profiles and handles. He would not respond to questions why he liquid papered over the profile specifically noting Colonial, and re-iterated he was telling the truth.

10. Ms Sweet drew the Tribunal’s attention to the Respondent’s application for representation at the preceding mediation, and sought Mr Hyland’s comment on whether he had signed that application. The Tribunal notes that Mr Hyland acknowledged that the form did not hold his signature but in fact purported to do so. Mr Hyland indicated Mr Frazer had done because he held power of attorney for him, and was authorised to sign documents in his absence. However the Tribunal notes that the form has been signed in Mr Hyland's name, not in Mr Frazer’s as Power of Attorney and it is not accompanied by a power of attorney instrument. Ms Sweet directed the Tribunal attention here as evidence of propensity to alter documents without authority. The Tribunal notes this with concern, but this does not ultimately affect the outcome of this proceeding.

11. Mr Frazer gave evidence that John Stuart the installer had informed him that Mr DeCarteret had accepted delivery with no objection. John Stuart, the Cabinetmaker provided a letter signed which indicates this. The statement is not sworn and there is no way for the Tribunal to test that is reliable evidence. The Tribunal has not relied upon this document.

12. The evidence of Mr Phil Porter was that on 10 February 2013, he formed the contract and discussed available types of door profiles with Mr DeCarteret and Ms Sweet. He stated that he worked in ‘the renovation business’ and had been a contractor to Nerang Liquidation Centre at the time the contract was formed. He stated that Ms Sweet did not like the range of door profiles in the showroom, and he showed her another product which was not standard in a different part of the office. He identified this as the door profile photographed in “CS13” of Ms Sweet’s material. He said he tried to draw it on the contract, and referred to it as ‘a tiny squiggle’ noting ‘colonial doors as per timber sample’. The handles were not selected at the time and was noted ‘TBA’ in his writing.

13. Mr DeCarteret gave witness that Mr Frazer asked him on 6 March 2013 to give instruction about the style of doors but he responded, ‘It is not for me to answer, speak to her. I am only instructed to sign off on the measurements’. He said Ms Sweet was overseas for work at the time and this was the reason he was attending on her behalf. He had sent Ms Sweet photos on 26 May 2013 of the finished product and only when Ms Sweet received this did he become aware that they were not doors Ms Sweet had selected.  

14. He denied that on 6 March 2014 he had told Mr Frazer that he liked the New Square. He further denied Mr Frazer’s suggestion that he had said, ‘It really doesn’t matter, it’s not my kitchen’. Mr DeCarteret said, ‘Not in my wildest dreams would I ever think to pick a door’.  He added ‘Sweetie is very particular about things’.  He denied that he authorised changes to the door handles or profiles at any time.  After Ms Sweet had made the complaint, he informed the Tribunal that Mr Frazer had indicated that the door profile did not exist, but he had taken photographs with Mr Porter of the Profile “CS13” that was contracted for.

15. Mr DeCarteret under cross examination indicated that he allowed his name to be on the contract because he was part of the ‘team’ overseeing the installation. He agreed that he accepted the kitchen upon delivery. He said he had no reason to query the door profile upon installation.

16. Mr DeCarteret stated that he was now a qualified builder but had been a building student at the time. He acknowledged that in signing the specifications he was signing a contractual document. He said his name had been on contractual documents because he was there at the initial meeting and the respondent assumed he was a party to the contract.

17. Under cover of an undated letter emailed 27 June 2013 to Mr Hyland, Ms Sweet stated that she was seeking ‘a resolution for ongoing issues relating to the ordering and installation of the kitchen for myself and my partner Ash DeCarteret’. This being the case, the Tribunal considers Ms Sweet has informed the Respondent that they both parties to the contract and Mr Frazer was entitled to rely on directions from Mr DeCarteret, and any changes he authorised to the specifications.

18. When questioned at the hearing about this Ms Sweet denied that Mr DeCarteret was her partner or that he was party to the contract. She indicated that he had been her agent only, and that they had never been in a relationship.  Mr DeCarteret appeared visibly uncomfortable when questioned about this and denied that he had been in a relationship with Ms Sweet ‘at the time’. In light of the letter 27 June 2013 declaring the agreement to be between herself and “her partner” Mr DeCarteret, the Tribunal accepts Mr Frazer’s evidence that he understood that Mr DeCarteret was party to the contract, and it would seem conducted themselves at all times as though Mr DeCarteret had contractual authority. The Applicant’s inconsistent position on this in evidence undermines the reliability of her evidence. This email also casts doubt as to the credibility of Mr DeCarteret’s evidence.

19. Indeed multiple documents are addressed to Mr DeCarteret only, or both Mr DeCarteret and Ms Sweet being:

    a)    The plan, identified as DeCarteret order number.

    b)    Customer Name was identified as DeCarteret in the manufacture request of 8 March 2013.

    c)    Customer specifications dated 28 February 2013 Mr DeCarteret was identified as the named customer.

    d)    The Kitchen Contract signed by Ms Sweet

20. Ms Sweet it seems never raised objection to Mr DeCarteret’s name on these documents.

21. It is apparent that the Ms Sweet and Mr DeCarteret held out they were jointly and severally party to the contract, despite strongly denying this at the hearing. Where Mr Frazer had no way of knowing that the kitchen was not for the benefit of Mr DeCarteret also, the Tribunal accepts Mr Frazer’s evidence of the exchanges between the two on 6 March 2013, that Mr DeCarteret authorised the changes.

22. The contract of 10 February 2013 itself was uncertain. The doors were identified as “Colonial as per the timber sample”. The document did not attach any photo or document to identify which timber sample.  There are two types of Colonial doors provided by the Respondent.  

23. The evidence suggests that Mr Porter wrongly identified the door panels, which are not a standard product of the firm. It would seem that the contract could have included Colonial with curved ends or Colonial with square ends, and this specification needed clarification before the specifications were finalised. It is reasonable to conclude that the signed specifications held all the specifications the clients approved of before Mr Frazer sent the plan off to be manufactured.  It is apparent that the Mr DeCarteret did not initial the drawing and change to the Door profile, and therefore the altered document cannot form part of the contract agreed between the parties. However, the document identified at “CS3” was incomplete and uncertain. It is unlikely that incomplete specifications would be sent off for manufacture without some finalisation of these after discussion with the client about the selection for the doors and handles. It is reasonable to conclude based on the evidence that Mr Frazer acted on the verbal instruction of Mr DeCarteret.

24. The Tribunal considers that Mr DeCarteret was a party to the contract, and accepted the delivery without complaint on 26 May 2014. Ms Sweet has held him out to be a party to the contract at all times and cannot assert in light of her email of 27 June 2013 that he was not. Mr DeCarteret failed to raise a complaint within the 24 hours specified in the contract between the parties. On this basis, there can be no claim for compensation relation to the cupboards.

TAP

1. Ms Sweet also seeks compensation for a faulty mixer tap which formed part of the contract, but was not able to be installed due to a defect. A temporary alternative tap was used. She gave evidence that Mr Frazer acknowledged in discussions of 10 July 2013 that the tap was defective. Email correspondence of 13 August 2013 between the parties indicates Mr Frazer was unwilling to pay for a plumber as Mr DeCarteret was a tradesman and could do it himself as it was a simple matter of unscrewing the hoses and reversing the process.   The defective tap was not disputed at the hearing by Mr Frazer who indicated he could provide the tap forthwith. Ms Sweet seeks compensation for the costs of a plumber to install this on 10 October 2013.  The evidence suggests that but for this faulty tap, Ms Sweet would not have had these costs.  She provided the Tribunal with an invoice of this date from Vella Plumbers for removal of faulty sink mixer and replace with new at a cost of $99.  In the absence of dispute, the Tribunal grants compensation for this tap installation accordingly.

BENCHTOP

1. Further, Ms Sweet claims the plan provided by the Respondent did not include a 100mm support beam which exists in the kitchen. She argued the absence of this beam in the plan resulted in the stonemason cutting and rejoining the granite bench top to fit around the beam. She described the effect as unsightly with obvious joins around the beam. Ms Sweet told the Tribunal that Mr Luke Marshall the stonemason who installed the bench top granite advised her that the stone would have been cut differently to allow for the support beam had this been included in the plan. She said that he advised her that the only method of remedy was replacing the bench top. Ms Sweet provided no independent evidence of this conversation with Mr Marshall. Ms Sweet sought compensation for the bench top replacement and retiling. She provided a quote from Grand Prix Tiles dated 20 November 2013, for tiling works including cut, bevel and polish stone features and to supply and fit with gloss porcelain and related works. This was quoted at $800. The Granite bench top replacement is quoted by Kitchenworks on 21 February 2014 at $3,740 .

2. Mr Frazer’s evidence was that the plan does include the post, and the stonemason cut accordingly. He said that the stonemason assured him that the bench top met industry standards. He said the post was in the way and the only way to install the bench was around the post, and this posed difficulties with the angle. He argued that the Ms Sweet may have a ground of action against the installer.  He said he doubted that Mr Marshall would have told Ms Sweet that saying, he was ‘a friend of mine, and he wouldn’t say that’.  Further, he referred to a “Kitchen installation Agreement” signed by Ms Sweet where she agreed that Nerang Liquidation Centre would not be responsible for installation of the product. He also stated that the plan identified the support post. The Tribunal notes at item 7 the plan clearly identifies a load bearing post at the bench.  Given this, there is no evidence to suggest that the respondent is responsible for any defects in the bench top. There is no basis for compensation for the granite bench top.