Universal Truss Management Pty Ltd Trading as Universal Trusses v Abdul Samad Rashidi Trading as Blackbridge Homes (Civil Dispute)

[2021] ACAT 26

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

UNIVERSAL TRUSS MANAGEMENT PTY LTD TRADING AS UNIVERSAL TRUSSES v ABDUL SAMAD RASHIDI TRADING AS BLACKBRIDGE HOMES (Civil Dispute) [2021] ACAT 26

XD 290/2020

Catchwords:               CIVIL DISPUTE – debt claim – counter claim for breach of contract

Legislation cited:        Australian Consumer Law ss 54, 60

Tribunal:Senior Member K Katavic

Date of Orders:  1 April 2021

Date of Reasons for Decision:         1 April 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 290/2020

BETWEEN:

UNIVERSAL TRUSS MANAGEMENT PTY LTD TRADING AS UNIVERSAL TRUSSES

Applicant

AND:

ABDUL SAMAD RASHIDI TRADING AS BLACKBRIDGE HOMES

Respondent

TRIBUNAL:     Senior Member K Katavic

DATE:1 April 2021

ORDER

The Tribunal orders that:

1.The respondent is to pay the applicant $3,384.02

………………………………..

Senior Member K Katavic

REASONS FOR DECISION

Introduction

1.This matter began its journey in the tribunal as a debt claim in relation to an unpaid invoice for the supply of trusses and floor sheets for a new house construction being built by the respondent. The controversy evolved into a dispute about the terms of what was to be supplied as included in the quote and the quality of what was supplied.

2.The applicant supplied trusses and floor sheets to the respondent at a quoted cost of $36,102. The applicant claims the respondent failed to pay the final amount of $10,000. It commenced proceedings against the respondent seeking recovery of that amount plus interest and the tribunal filing fee. It maintains that claim.

3.After some procedural issues, including default judgment being set aside, the respondent lodged a response and counter claim. This was later amended and further changed at the hearing. The respondent’s claim against the applicant comprises the following:[1]

[1] The respondent did not proceed with his claim against the applicant for $2,278.64 for an alleged failure to deliver some timber bearers and balcony joints. The respondent conceded his claim against the applicant for $10,000 compensation overlapped with the other amounts claimed and did not pursue that amount

(a)$4,240 for the applicant’s failure to provide fibre cement floor sheets;

(b)$2,400 for the cost of replacing bowed trusses;

(c)$500 for the cost of disposal of defective floor trusses;

(d)$3,840 for wages incurred by reason of the applicant’s delayed supply;

(e)interest; and

(f)the tribunal filing fee.

Background

4.On 10 December 2016, the applicant provided a quote for the supply of floor sheets trusses and frames to the respondent. This was based on a set of architectural and engineering drawings for the construction of a new residential dwelling.

5.The applicant’s quote was for $36,685 (Inc GST) and comprised:

(a)floor sheets (37 Inc glue);

(b)floor trusses;

(c)frames;

(d)timber ancillaries (CW. TB. VB.);

(e)trusses (600 centres Inc rafters); and

(f)timber (bearers 300/63, 300/45 LVL).

6.On 14 June 2017, the respondent requested a new quote from the applicant based on amended plans. What the respondent requested is the subject of contention. Nonetheless, on 14 June 2017, the applicant provided a quote for $36,102 (Inc GST) comprising the same items set out above.

7.On 26 July 2017, the respondent met with Mr Doug Potter at the applicant’s office to discuss the quote. Again, there is some contention about what was discussed at this meeting and the understanding of the parties following the meeting.

8.On 27 July 2017, the respondent paid to the applicant $10,000 as an initial deposit.

9.On 22 August 2017, the respondent paid the applicant a further sum of $10,000.

10.On 25 August 2017, the applicant delivered lower frames to the site. Also, on 25 August 2017, the applicant issued the respondent an invoice for $6,413. The balance owing was zero.

11.On 5 October 2017 the applicant delivered floor trusses to the site. Also, on 5 October 2017, the applicant issued the respondent with an invoice for $9,988 with a balance owing of zero.

12.The respondent claims that some of the floor trusses that were delivered were too short or too long in length or missing. He claims the bearers and joists for the balcony were not delivered. He further claims that the delivery of floor sheets comprised yellow tongue sheets only and did not include wet area floor sheets of 15mm compressed cement sheets.

13.On 1 November 2017, the applicant delivered the correctly measured floor trusses to the site. The respondent claims the applicant did not remove 32 defective floor trusses which he was later required to do himself at a cost of $500.

14.The applicant denies the balcony bearers and joists were included in the quote. However, this claim was abandoned by the respondent at the hearing.

15.The applicant denies the quote included floor sheets for the wet areas, being 15mm compressed cement sheets.

16.On 29 November 2017, the applicant issued a final invoice to the respondent for $19,701.

17.On 5 December 2017, the respondent paid the applicant the sum of $6,102 as a further progress payment. The balance owing to the applicant was $10,000.

18.On 6 February 2018, the applicant delivered the upper trusses to the site. The respondent claims these were ready for delivery on 7 December 2017 which was delayed a number of times and that because of the delays in delivery he incurred carpenter fees totalling $3,840.

19.On 20 February 2018, the applicant delivered carport and parapet trusses to the site.

20.The respondent claims that by June 2018, three of the trusses delivered on 5 October 2017 had bowed and needed replacing. He claims the applicant failed to replace the defective trusses and he since incurred $2,400 replacing them.

21.The respondent refused to pay the outstanding amount on the basis that the applicant had failed to deliver everything he understood was included in the quote and some of the items being defective. He does not dispute the money is owing. His claim is essentially a set off.

The evidence

22.The applicant relied upon the following documents:

(a)Documents attached to the civil dispute application.

(b)Documents attached to the reply and defence to counter claim lodged.[2]

(c)Witness Statement of Sue Svehla dated 19 February 2020 [sic].[3]

(d)Witness Statement of Doug Potter dated 19 February 2020 [sic].[4]

(e)Witness Statement of Arthur Potter dated 19 February 2020 [sic].[5]

(f)Witness Statement of John Potter dated 19 February 2020 [sic].

[2] Lodged by the applicant on 5 November 2020

[3] Exhibit A1

[4] Exhibit A2

[5] Exhibit A3

23.The witness statement of Mr John Potter was treated as a submission on behalf of the applicant not a witness statement.[6] It may be best characterised as argument not evidence.

[6] Counsel for the respondent objected to the witness statement on the basis that it was argument and not evidence. She had no objection to it being treated as a submission. No objection was taken to the annexures to the submission.

24.Ms Svehla was not required for cross-examination. Mr Arthur Potter and Mr Doug Potter both gave evidence before the Tribunal and were cross-examined.

25.The respondent relied upon the documents attached to the amended counterclaim and his witness statement dated 2 February 2021.[7] He gave evidence before the Tribunal and was also cross-examined.

Were the cement floor sheets included in the agreement?

[7] Exhibit R1

26.There are two critical aspects of the evidence the respondent relies upon in support of his claim regarding the inclusions in the quote. The first is an email to Mr Arthur Potter dated 14 June 2017 which states:

Further to our phone conversation, please find attached amended plans to quote. Please keep in mind that the subject house is siting higher than that of the side and rear neighbours’, so an appropriate wind rating needs to be kept in mind for bracing and tie downs. Floor sheets in the wet areas and balcony – are they 15mm cement sheet?[8]

[8] Exhibit R1: witness statement of Abdul Samad Rashidi dated 2 February 2021 at [7]

27.The second comprises his own handwritten notes from the meeting with Mr Doug Potter on 24 July 2017.[9]

[9] Exhibit R1: witness statement of Abdul Samad Rashidi dated 2 February 2021 at [15] and [16]

28.The respondent’s evidence was that the ticks beside each item on his handwritten notes indicated his understanding of the inclusions in the quote. One such item with a tick beside it refers to the cement floor sheets. The respondent’s evidence in this regard was largely unchallenged, save for what Mr Doug Potter said about the meeting on 24 July 2017. It was put to the respondent under cross-examination a number of times that the amount claimed for the cement floor sheets was not supported by any invoice or payment receipt.

29.The applicant’s evidence on this issue is problematic. Mr Arthur Potter says cement floor sheets were not included and could not have been included because at that time they did not supply such sheets. They simply did not have them. He told the Tribunal that any request to include cement sheets was not passed on to him by Mr Doug Potter, if such a request was in fact made.

30.Mr Doug Potter’s evidence is limited. His witness statement states:

At no time during my discussions with Sam Rashidi on 26 July 2017, did I confirm that 15mm Compressed FC would be supplied by Universal Trusses, rather that FC sheets could be used, but we don’t supply them, so at the cost and responsibility of the builder.

31.Under cross-examination, he said the statement confirms he told the respondent that the applicant did not supply cement sheets. The contrary inference that was put to him under cross-examination was to the effect that ‘at no stage did he say such a statement’. He disagreed and did not appear to understand the contrary inference. He accepted that his recollection of the meeting was vague. As he is not responsible for preparing the quotes, he accepted the possibility that the respondent requested the cement sheets and he told the respondent he would pass that on for inclusion.

32.I accept that as a lay witness unfamiliar with tribunal procedure Mr Doug Potter was doing his best to answer the questions he was being asked. I also accept that in his mind the statement reflected that he told the respondent the applicant did not supply cement sheets. I also accept that the statement may be construed differently as was put to him by Counsel for the respondent. Whether I accept Mr Doug Potter’s intended meaning of the statement or not, it sits in contrast with the respondent’s handwritten notes that have a tick beside the cement sheeting item. The respondent was not challenged on the correctness of the notes nor was it suggested to him that Mr Doug Potter advised him to the contrary.

33.The respondent submits that by reason of the evidence referred to above he understood the reference to floor sheets in the quote includes the wet area floors comprising cement sheets.

34.I am satisfied on the respondent’s evidence the respondent left the meeting with Mr Doug Potter holding the belief that, amongst other things, the quote included cement sheets for wet areas. Mr Doug Potter’s evidence in the circumstances is unreliable. I am satisfied the respondent was of the reasonable understanding that the quote included cement sheets. Only the applicant was in a position to know they could not be because they did not supply them. That was not something the respondent was privy to based on the evidence before the Tribunal.

35.Regardless of whether the applicant perceives it to be impossible that cement floor sheets were included, the respondent understood the terms of the agreement included cement floor sheets for wet areas. He is entitled to the amount of $4,240 as claimed.

Responsibility for the bowed trusses

36.The respondent claims that as at June 2018 three of the floor trusses delivered by the applicant on 5 October 2017 had bowed causing him to incur costs for labour and materials to address the defect. He gave evidence to this effect which was supported by photos annexed to his witness statement.[10] The respondent also gave evidence that sometime in June 2018 he spoke to the applicant, although it is unclear exactly who he spoke to, and reported the bowed trusses and requested rectification. He says the applicant said words to the effect “that’s not our problem. You need to pay the balance of the invoice.”[11] The respondent does not claim that the floor trusses were bowed at the time they were delivered. There is no evidence to support such a claim in any event.

[10] Exhibit R1: witness statement of Abdul Samad Rashidi dated 2 February 2021 at [30]

[11] Exhibit R1: witness statement of Abdul Samad Rashidi dated 2 February 2021 at [35]

37.Insofar as it can be ascertained, the applicant rejects the respondent’s claim in relation to the bowed trusses on account of the passage of time and the house being unsealed and open to weather damage. The applicant says the identification of the bowed trusses occurred eight months after they were delivered. The applicant does not appear to dispute the trusses were bowed at the time the respondent says they were.

38.The applicant’s position was not supported by evidence and the respondent’s evidence on this issue was not the subject of serious challenge. It was put to the respondent a number of times by the applicant that the amount claimed for the bowed trusses was not supported by any invoice or payment receipt. He was asked whether the items delivered were covered up, to which he told the Tribunal that labourers put covers on the sheets and he did not ask what was delivered or check the delivery because they were covered to protect them. I understood these questions were asked in the context of the respondent failing to identify the absence of the cement floor sheets at the time of delivery. It is unclear whether the trusses delivered at the same time were also covered for protection. In those circumstances I am unable to make a finding that they were.

39.I am satisfied that three floor trusses had bowed by June 2018. I am not satisfied they were bowed on delivery. In this regard the respondent relies upon sections 54 and 60 of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010). The respondent claims the applicant supplied goods that were not of acceptable quality, and failed to comply with statutory guarantees conferred on the respondent, relevantly that goods will be of acceptable quality and services supplied will be rendered with due care and skill.

40.Why the floor trusses subsequently bowed is unexplained. There is no evidence to support the applicant’s claim that the floor trusses bowed due to the passage of time and exposure to weather. In those circumstances I am satisfied that the floor trusses that were delivered by the applicant were not fit for purpose and required rectification at a cost to the respondent. The respondent is therefore entitled to recover the sum of $2,400 from the applicant.

The disposal of defective floor trusses

41.It is not disputed that some of the floor trusses delivered were incorrect lengths. These were replaced with correct floor trusses. The respondent claims the disposal cost from the applicant on the basis that it was its responsibility to remove them from the site having subsequently delivered the correct ones. The applicant denied the respondent’s claim on the basis that its delivery drivers were only instructed to deliver and pick up as directed by the office and the respondent had not requested removal of the incorrect floor trusses from the applicant.

42.I am satisfied the delivery of defective floor trusses constitutes a breach of the agreement. The respondent has suffered loss in respect of that breach. His evidence was not challenged as to the circumstances surrounding disposal nor the cost of disposal. It was put to him that there were no invoices or payment receipts in relation to the disposal. He was not challenged in relation to his evidence that he had spoken to the applicant numerous times, although it is unclear who he spoke to, requesting removal of the trusses.[12]

[12] Exhibit R1: witness statement of Abdul Samad Rashidi dated 2 February 2021 at [27]

43.I am satisfied the respondent is entitled to recover the sum of $500 from the applicant for the disposal of the defective floor trusses.

The claim for delay

44.The respondent claims the applicant delayed delivery of trusses between 7 December 2017 and 6 February 2018. The respondent says he paid wages for work that could not be performed because the applicant failed to deliver the trusses as expected.

45.The respondent’s evidence is that the upper trusses were ready for delivery on 7 December 2017 but were not delivered until 6 February 2018. He says during that period he would make enquiries of the applicant as to delivery date, arrange the carpenter to be on site for those dates, but the delivery failed to arrive as expected.[13]

[13] Exhibit R1: witness statement of Abdul Samad Rashidi dated 2 February 2021 at [32]

46.The applicant denies it caused any delay except for one delivery because payment had not been received. That is the payment the subject of the debt claim. It says that delay was only two days and the trusses were released to the respondent despite payment not being made. The applicant relies upon a log to support its submission that any delays after trusses were manufactured were based on advice from the respondent.[14]

[14] The log is annexed to submission “Witness Statement of John Potter dated 19 February 2020 [sic]”

47.The respondent was not questioned specifically about the log. It was put to him that there was a delay because payment had not been made, but the respondent disagreed. He was not asked if he delayed any deliveries.

48.According to the respondent’s evidence, the delay, the subject of his claim, occurred between 7 December 2017 and 6 February 2018. The applicant’s submission is that the delay due to the respondent’s failure to pay was only two days. The log suggests otherwise. Equally, there is nothing in the log that records the respondent requesting and then delaying delivery during this period.

49.Elsewhere in the log, between 22 August 2017 and 29 November 2017, there are entries which suggest the applicant was awaiting confirmation from “Sam”[15] for deliveries and these were delayed. It is not until the entries dated 1 December 2017 that a halt on delivery due to the unpaid account is recorded. There are entries on 5 December 2017 recording “Rick will call for trusses”. According to the log, the applicant decided on 5 February 2018 to deliver the trusses regardless of the issues with the unpaid account.

[15] I have assumed this is the respondent as he identified himself at the hearing as “Sam”.

50.I am not satisfied the respondent has established his claim regarding the wages. His claim was for delay occurring between 7 December 2017 and 6 February 2018 because he made repeated requests for delivery with promises of delivery which never eventuated. This is not supported by the log. The respondent denied the reason for delay between 7 December 2017 and 6 February 2018 was because the account had not been paid. It was put to him by the applicant that this was the reason for delay.  He disagreed. This is inconsistent with the log.

51.I am satisfied that based on the log the explanation for the delay in delivery from 1 December 2017 was due to the applicant’s account being unpaid. There are no entries which support the respondent’s account. The relevant entries do however support the applicant’s position. The respondent has not established that he incurred wages for delay in the manner claimed. I do not allow the claim for $3,840.

Conclusion

52.I am satisfied the applicant is entitled to the debt owed, plus interest and other fees. This amounts to $10,826.84 comprising:

(a)$10,000 for the debt.

(b)$477.84 between 28 February 2020 and 1 April 2021.

(c)$30 for search fees.

(d)$319 for the tribunal filing fee.

53.However, the respondent has also been partially successful in his counter claim.  I am satisfied the respondent is entitled to recover the following amounts, totalling $7,140, from the applicant:

(a)$4,240 for the cement floor sheets;

(b)$2,400 for the bowed trusses;

(c)$500 for disposal of the incorrect trusses.

54.The respondent also claimed interest and the filing fee, however, he did not specify a date from which interest accrues. I have taken this to be 12 October 2020, being the date the counter claim was lodged. The total amount in favour of the respondent is $7,442.82 comprising:

(a)$7,140 for the claim

(b)$140.32 between 12 October 2020 and 1 April 2021

(c)$162.50 for the tribunal filing fee.

55.This leaves the respondent owing the applicant $3,384.02.

………………………………..

Senior Member Kristy Katavic

Dates of hearing:	16 March 2021
Applicant:	Mr G Grimshaw, authorised representative
Counsel for the Respondent:	Ms B Nolan
Solicitor for the Respondent:	Alexander Rashidi Lawyers