Trends Australia Group Pty Ltd v Merlo

[2012] QCAT 526

CITATION: Trends Australia Group Pty Ltd v Merlo and Ors [2012] QCAT 526

PARTIES:	Trends Australia Group Pty Ltd (Applicant)
v
Tony Merlo Jan Merlo RJ Cummins trading as Seaforth Maintenance Services (Respondent)

APPLICATION NUMBER: MCDO2619-11

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 6 August 2012

HEARD AT: Brisbane

DECISION OF: Kevin O’Hanlon, Adjudicator

DELIVERED ON: 15 October 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Mr and Mrs Merlo pay to Trends Australia Group Pty Ltd the sum of $4,538.00 within 21 days.

CATCHWORDS: Contract – sub-contractor

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Trends Australia Group Pty Ltd

RESPONDENT:

1.    Tony Merlo & Jan Merlo

2.    RJ Cummins trading as Seaforth Maintenance Services

REASONS FOR DECISION

1. In this claim the applicant seeks payment from Mr and Mrs Merlo for the supply and installation of a kitchen and associated work at the Merlos' apartment at Unit 10H, The Rocks, 828 Pacific Parade, Currumbin.

2. The Merlos have declined to pay.  By implication and by assertion they have maintained that the job was not done properly and that amongst other things the subcontractor, Seaforth Maintenance Services (RJ Cummins), failed to apply themselves diligently and exhibited “a lack of commitment”.  Moreover the Merlos assert that Mr Cummins was to supervise the work and to remove rubbish etc which they were forced to do. 

3. During the hearing it was noted that from a previous directions hearing the applicant Trends Australia Group Pty Ltd had complied with the directions hearing and provided affidavits by two of their employees as well as a letter of demand with attachments.  Mr Cummins (Seaforth Maintenance Services) had provided a five page response as a statement of evidence and had also furnished the Merlos' letters dated 15 December 2011 and 21 March 2012.  It was noted that the Merlos had not complied with their practice direction and Mr Merlo who attended advised that he had not received it in the mail and furthermore after telephoning his wife he advised that she also confirmed that they had not received it.  Mr Merlo advised that the mail sometimes goes astray at their apartment building because of the way the mail is distributed in that building. 

4. At the commencement of the hearing Mr Merlo handed up a written response to the statement of evidence by Seaforth Maintenance Services.

5. I requested whether there was any other evidence or any witnesses to be heard all parties answered in the negative save and except that Mr Merlo presented a two page statement by an Ann Aislabie dated 31 July 2012.  There was some thought that this should not be given any weight as it was unsworn and furthermore had only been signed and provided immediately before the hearing on 6 August 2012.  I advised that I would give such weight to it as was necessary in the circumstances.  I do not give much, if any, weight to this statement as Ms Aislabie has not sworn to it nor has she attended the hearing.

6. At the request of the Tribunal whether any further oral or written evidence was to be made, all parties agreed that there was nothing further to be added.  Mr Merlo advised that they were holding back payment because of the extra work to be done and because the way the unit was left at the end of the work being carried out by Seaforth Maintenance Services as well as a lack of commitment.  Mr Merlo did not quantify his claim in any way to offset the applicant’s claim.  All the parties then advised the Tribunal – despite several requests by the Tribunal whether any further evidence was to be lead or whether any party asked to cross examine or whether they wished to rely on written documents, that their evidence had been reduced to writing.  Accordingly this decision was reserved.

7. It seems from the evidence before me and on the material filed that Mr and Mrs Merlo do not claim the work was not finished.  In fact it appears that the work was ultimately carried out and they had no complaints about the work.  It seems that they want compensation for “lack of commitment” in an untidy workplace while the work was being done.  Amongst other things Mr Merlo alleges that Mr Cummins did not personally attend the site very often and that he (Mr Merlo) had to point out things that had been wrong during construction. 

8. On the other hand, it appears from the affidavit material and from the submissions that Mr Merlo was present most of the time if not all of the time and personally intervened in the carrying out of the work. 

9. In all of the circumstances it appears that the work has ultimately been carried out and on the evidence before me I cannot see any reason why the account should not be paid in full.  There is nothing in the evidence quantifying any set off and accordingly I find that the work that has been done in accordance with the original contract and the various variations that were done at the request of the Merlos was necessary and should be paid forthwith. 

10. Accordingly Mr and Mrs Merlo are to pay Trends Australia Group Pty Ltd the amount of the claim $4,323.00 together with the filing fee of $95.00 and the service fee of $120.00.  I do not allow interest.  Accordingly I order that Mr and Mrs Merlo pay to Trends Australia Group Pty Ltd the sum of $4,538.00 within 21 days.