The Calvert Family Trust t/as SKC Logistics v Carey
[2016] QCAT 526
•12 October 2016
| CITATION: | The Calvert Family Trust t/as SKC Logistics v Carey [2016] QCAT 526 |
| PARTIES: | Stephen Calvert ATF The Calvert Family Trust t/as SKC Logistics (Applicant) |
| v | |
| Sue Carey (Respondent) |
| APPLICATION NUMBER: | MCDO14-16 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 6 June 2016 |
| HEARD AT: | Beenleigh |
| DECISION OF: | Adjudicator Mewing |
| DELIVERED ON: | 12 October 2016 |
DELIVERED AT: | Brisbane | |
ORDERS MADE: | 1. Ms Sue Carey must pay $6,211.09 to Stephen Calvert as Trustee for Calvert Family Trust trading as SKC Logistics within 28 days if this Order. | |
| CATCHWORDS: | MINOR CIVIL DISPUTE – MINOR DEBT – Where contract performed – where customer refused to pay – where no right of set-off Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 14, 100, 102 |
APPEARANCES and REPRESENTATION:
| APPLICANT: | Stephen Calvert |
| RESPONDENT: | Sue Carey |
REASONS FOR DECISION
The Application
The Applicant (Mr Calvert) seeks payment of $5,806.40 plus interest and costs from the Respondent (Ms Carey) in connection with the provision of electrical infrastructure services at Ms Carey’s property.
Mr Calvert says that Ms Carey has refused to pay for electrical work done on her property despite the work being completed in accordance with a contract between them. Mr Calvert seeks orders accordingly.
Background
Ms Carey owns a rural property in the Scenic Rim region of Southeast Queensland. After a fire at her home she was in need of major electrical work, which included replacement of five poles and more than 100 metres of overhead electrical cable.
Ms Carey asked Mr Calvert to provide a quote to complete the work. As the work was on major infrastructure to Ms Carey’s electricity supply and would involve liaising with Energex, Ms Carey said she specifically sought an electrician who could deal with such a project. She believed Mr Calvert was experienced in these projects and experienced in dealing with Energex.
Before preparing a quote for Ms Carey, Mr Calvert visited the property to speak with Ms Carey and to undertake an inspection of the land. He determined that the way electricity had been supplied to the property before the fire could not be replicated.
Prior to the fire, the electricity supply to Ms Carey’s home ran across her neighbour’s land. The cables had started to sag and had the potential to become hazardous, and the neighbour did not want Ms Carey’s poles and cables on his property any more. It had also been determined that there was insufficient distance between existing overhead and underground cables to continue to run the supply from the transformer that had previously supplied Ms Carey’s home.
Ms Carey said she told Mr Calvert before work commenced that large trucks come and go from her property so the safest and most aesthetically pleasing configuration would be to have the poles and overhead cables run in a straight line beside her driveway, which runs along the boundary of her property.
On Mr Calvert’s request Energex proposed a solution which involved installing a new transformer on the street outside Ms Carey’s property. By email to Mr Calvert on 7 July 2015, a representative of Energex attached a map with what the writer said was a “rough location of what works would be done.”[1] The map (a relevant portion of which is inserted below: See Energex Map 1) showed the proposed installation of a new pole and transformer on the street outside Ms Carey’s property, but approximately 40 metres away from existing pole P657041, which was directly opposite Ms Carey’s driveway.
[1]Email to Mr Calvert from Matthew Anderson, Technical Connections Officer, Energex, dated 7 July 2015 at 1.10pm.
Energex Map 1
A notation on Energex Map 1 states: “Install new pole approx 40 mtrs from P65701 & new 25kva 1ph transformer.” According to Mr Calvert, this was a direction from Energex to Mr Calvert about where to install the first pole on Ms Carey’s property, given the minimum distances between transformer and first pole pursuant to regulation.
Mr Calvert considered he was bound to install the first pole on Ms Carey’s property as directed by Energex, then run cable across the front of her property to the driveway after which the remaining poles and cable would continue to run up the driveway to the house. Mr Calvert presented a quote to Ms Carey based on this configuration on 21 July 2015 for $13,508.00 which she accepted on 23 July 2015 and Mr Carey commenced the work.
On 13 August 2015 Mr Calvert invoiced Ms Carey for the balance of his quote, which was $5,806.40. According to him, he had done everything quoted and the only work outstanding was for Energex to install the new transformer.
On 23 October, Energex installed the new transformer. Rather than installing it where indicated on Energex Map 1, it was installed on existing pole P657041 directly in front of Ms Carey’s driveway. Accordingly, the cabling to Ms Carey’s house runs as shown on the unbroken line in Energex Map 2, below.
Energex Map 2
Ms Carey maintains her initial instructions were to run the first section of cabling as shown on the broken line. It seemed that both parties thought prior to commencement of works by Mr Calvert that the ideal configuration would be for a transformer to be located on pole P657041 where, as it turned out, it was eventually attached. However, in reliance on the 7 July 2015 email and Energex Map 1, Mr Calvert accepted that a site visit by Energex had determined that the appropriate place for the transformer was on a new pole. He told Ms Carey and she appeared to accept it too.
Ms Carey says that she reasonably relied on Mr Calvert’s experience with electrical works similar to hers and his experience working with Energex. She said her reliance was misplaced, as he acted prematurely in installing the first pole on her property as directed on Energex Map 1, and that he should have waited until Energex had completed its upgrades before installing the first pole on her property.
Ms Carey said Mr Calvert should have known the proposed location of the new pole and transformer shown on Energex Map 1 was subject to change given the disclaimer on the bottom of it which read:
“This output provides details of the ENERGEX electrical network. As variations may exist no responsibility is incurred by ENERGEX for the accuracy or completeness of the information provided. Exact positions of cables and connectivity should be confirmed onsite.”
The difficulty with Ms Carey’s assertion is that the installation of the new transformer was subject to the Network Connection Application which had to be completed by Mr Calvert on behalf of Ms Carey, and which provided that Ms Carey had to have all metering equipment and overhead lines connected at least three weeks prior to Energex’s estimated completion date.[2] Mr Calvert could not have waited until Energex’s works were completed.
Findings
[2]“Customer’s Activities”, Schedule 1 of the Network Connection Contract dated 1 September 2015.
I find that Mr Calvert fulfilled his contractual obligations by installing poles and wires in a configuration agreed to by Ms Carey. Emails tendered into evidence by Mr Calvert show that he was diligent in his communication with Energex to expedite Ms Carey’s reconnection to mains electricity while ensuring compliance with Energex requirements.
I find that the ultimate positioning of the pole and transformer was at Energex’s discretion and out of Mr Calvert’s control. Mr Calvert has fulfilled the terms of the contract and Ms Carey has no right of set-off.
Accordingly, Mr Calvert’s claim for the outstanding balance of the 13 August 2015 invoice is successful.
Mr Calvert claims interest of $145.99 on the outstanding amount. Interest may be awarded in a minor civil dispute pursuant to s 14 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). I order accordingly.
Mr Calvert also claims and filing and service costs totalling $258.70. Section 100 of the QCAT Act states that parties must bear their own costs, a general rule that is displaced by s 102 only where it would be in the interests of justice to do so. This Tribunal finds that Ms Carey had no basis for withholding payment from Mr Calvert. Her refusal to pay the balance on completion of the work as agreed has resulted in Mr Calvert having to pursue the matter in the Tribunal, wasting time and no doubt more cost than he is able to claim. It is my view, therefore, that it is in the interests of justice to award costs in his matter. As this is a minor civil dispute, the allowable costs are limited to the filing fee of $108.70, and the service fee and travelling allowance at the rate of the prescribed bailiff fees.[3] The file shows that Mr Calvert unsuccessfully attempted personal service on Ms Carey several times resulting in a claims of $150.00 for bailiff fees. These amounts are awarded to Mr Calvert.
[3] Rule 84(1) Queensland Civil and Administrative Tribunal Rules 2009 (Qld).
Orders
Ms Sue Carey must pay $6,211.09 to Stephen Calvert as Trustee for Calvert Family Trust trading as SKC Logistics within 28 days if this Order, being:
i) Claim: $5,806.40;
ii) Interest: $ 145.99;
iii) Filing fee: $ 108.70; and
iv) Bailiff fee: $ 150.00.
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