Varghese Trading As v Guard Electrical Services v John (Civil Dispute)
[2016] ACAT 103
•9 September 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
VARGHESE TRADING AS V GUARD ELECTRICAL SERVICES v JOHN (Civil Dispute) [2016] ACAT 103
XD 138/2016
Catchwords: CIVIL DISPUTE – disputed oral agreement for electrical work not included in inclusion list in building contract – work carried out – non payment of invoice – credibility
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 16, 17, 18, 48
Tribunal: President E Symons
Date of Orders: 9 September 2016
Date of Reasons for Decision: 9 September 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 138/ 2016
BETWEEN:EALIAS VARGHESE TRADING AS V GUARD ELECTRICAL SERVICES
Applicant
AND: THUINDYAL JOHN TITUS JOHN
Respondent
TRIBUNAL: President E Symons
DATE: 9 September 2016
ORDER
The Tribunal Orders that:
Judgment for the applicant for $5,181 plus the filing fee of $140, interest on the judgment from 5 September 2015 calculated in accordance with the Court Procedure Rules 2008, $313.45, and the applicant’s costs of $100 which totals $5,734.45.
The respondent pay to the applicant, within 28 days of this Order, the amount of $5,734.45.
………………………………..
General President L Crebbin
for and on behalf of President E Symons
REASONS FOR DECISION
The Proceedings
The applicant filed a civil dispute debt application (the application) in the tribunal on 8 February 2016 seeking that the respondent pay him $5,820 (the debt), the filing fee of $140 and interest from 24 December 2014 calculated in accordance with the Court Procedure Rules 2006. The debt claimed is for “extra electrical work mutually agreed” at the respondent’s property on Block 6 Section 33 Coombs (the property) between 24 November 2014 and 10 August 2015.
The applicant is also known as ‘Roy’ and is referred to as Roy in some of the material relied on in this matter. He filed the following documents with his application:
(a)statement by the applicant;
(b)email from applicant to the respondent dated 19 September 2015 enclosing invoice 511;
(c)tax invoice 511 to the respondent for $5,821;
(d)email from the respondent to the applicant dated 20 September 2015 stating all of the work done at his place was done by Mansa Consulting within the contract limit which he had cleared;
(e)emailed letter from Dr Sunil Tewari, Director, Mansa Consulting Pty Ltd dated 26 October 2015 to the applicant, respondent and Vavoli and attachments;
(f)email from Sunil Tewari to the applicant dated 20 October 2014 and attached plan and engineering design for the respondent’s property;
(g)email from Sunil Tewari to the applicant dated 25 August; and
(h)bundle of photographs.
The respondent filed a response on 7 March 2016 in which he admitted liability for $704 of the debt. The respondent denied liability for the remainder of the debt claimed. The respondent filed the following documents with his response:
(a)statement by the respondent;
(b)email from the respondent dated 18 October 2015 to Mansa Consulting and email from the CBA to the respondent dated 6 August 2015 for payment of $376; and
(c)email from Sunil Tewari to the applicant dated 5 September 2015.
The parties attended a conference on 4 April 2016 when the matter was set down for hearing on 24 May 2016 and directions were made for the filing of further material by each of the parties. Both parties filed material in compliance with the directions.
On 24 May 2016 the respondent did not attend the hearing and the tribunal dealt with the matter ex parte and entered judgment for the applicant.
On 1 June 2016 the respondent lodged an application for interim or other orders where the orders sought were “That the order dated by the Tribunal on Tuesday the 24th May 2016 I request kindly to be set aside so I may DEFEND the matter.” This application was set down for hearing on 21 June 2016.
On 21 June 2016 the tribunal set aside the orders dated 24 May 2016 and set the matter down for hearing on 17 August 2016. The tribunal noted the applicant’s intention to seek the costs (costs application) of his non-attendance at work on 21 June 2016 and that the applicant would file and serve material in support by 28 June 2016.
On 24 July 2016 the applicant submitted a letter to the tribunal in support of his claim for loss of work on 21 June 2016.
The application was heard on 17 August 2016. Each party was self represented and gave evidence. The applicant’s witness, Dr Sunil Tewari gave evidence by telephone. The respondent’s wife, Ms Shiji John was a witness. She attended the hearing and gave evidence. The parties and the witnesses gave evidence under affirmation and were cross examined. After hearing submissions from the parties the Tribunal reserved the decision. This is the Tribunal’s decision.
Legislative framework
The tribunal’s jurisdiction to hear civil disputes is set out in Part 4 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). A ‘civil dispute’ is defined in section 16 of the ACAT Act, relevantly, as follows:
16Meaning of civil dispute and civil dispute application—Act
In this Act:
civil dispute means a dispute in relation to which a civil dispute application may be made.
civil dispute application means an application that consists of 1 or more of the following applications:
(a) a contract application;...
...
(c)a debt application;
Where the amount claimed by the applicant is less than $10,000, the tribunal has jurisdiction to hear the application under sections 17 and 18 of the ACAT Act.
Agreed facts
The parties agreed that the respondent had a contract with Mansa Consulting Pty Ltd (Mansa) to build his home on the property; that the contract included an electrical inclusion list (inclusion list) and that the applicant was engaged as Mansa’s subcontractor to carry out the electrical work in the inclusion list.
The parties agreed that the respondent had requested the applicant install two chandeliers ($220), three hanging fancy lights ($330) and one fan ($154) and the respondent owed the applicant the sum of $704 in invoice 511 for the applicant’s charges for this extra electrical work.
During the hearing the parties also agreed that the respondent had paid to Mansa $376 of the amount claimed for the upgrade of the tastic lights in three bathrooms at the property. In his evidence Dr Tewari confirmed that he had received this amount on behalf of Mansa and that it was owed to the applicant.
Otherwise the respondent disputed his liability to pay $4,741 to the applicant for the following work in invoice 511:
(a) Total number of extra light points 36 x $77 (inc GST)
$2,772.00
(b) Total number of extra power points 13 x $60.50
$786.50
(c) Tastic Globes (incl. GST) and freight ($640) less $376
$264.00
(d) Total number extra two way switches - 15 x $49.50 (incl. GST)
$742.00
(e) Total number extra data points 2 x $88
$176.00
Total
$4,741.00
The issues
The issues for determination are:
(a)was the electrical work the subject of invoice 511 included in the inclusion list or was it ‘out of contract’; and
(b)if the work was not included in the inclusion list and was out of contract, was an oral agreement entered into between the parties for the applicant to carry out the electrical work not included in the inclusion list and for the respondent to pay for that work; and if so
(c)what was the cost of that work?
(d)If the answer to (b) is no, is the respondent liable to pay the applicant a fair and reasonable sum for his labour and the materials he provided? In other words, does the applicant have a claim for quantum meruit?
The evidence
The applicant’s evidence
The applicant said that he was engaged by Mansa as the subcontractor to do the electrical work at the property for the respondent and his wife. On or about 28 March 2015 Mansa provided him with a copy of the inclusion list for the property. He had met the respondent and Ms John to discuss the wiring plan and the respondent and his wife had agreed at that meeting to go with the inclusion list. The applicant completed the ‘marking’ at the property for the electrical installations in the inclusion list.
On or about 10 April 2015, the applicant was at the property when the respondent and his wife arrived. The applicant said that the respondent informed him that he and his wife wanted to modify the inclusion list and requested extra points and fittings that were not in the inclusion list. The applicant said he offered to do the additional work at the same rate as agreed by the builder (Mansa) in the inclusion list on every item which was additional to the inclusion list and that the respondent verbally agreed to pay for all additional work after the commissioning of the project. The applicant said he had discussed the additional work with the respondent as he needed to plan the re-wiring accordingly. He also told the Tribunal that whenever he received an additional work order from the respondent he was required to inform Mansa. He had contacted Mansa for clarification of the extra points not included in the inclusion list and Mansa agreed. He then re-marked all of the ground work to accommodate the respondent’s additional work.
The applicant said that he also agreed to the respondent’s further request that he install two chandeliers, three fancy light fittings and the fan which the respondent had purchased and that the respondent had agreed to pay him for the applicant’s extra services. The respondent had not paid him.
The applicant said he completed all of the wiring including the additional wiring and control work for the extra work prior to installing the switches and the fittings the respondent had purchased. The applicant said he had paid for the material for most of the extra work which, because the respondent had not paid for this work, had caused him to struggle to pay his suppliers’ bills.
The applicant had filed a copy of the inclusion list, of the extra work which he had carried out for the respondent and a copy of Invoice 511 for this extra work. He had filed a bundle of photographs he had taken at the property of some of the extra work he had carried out, copies of emails from Dr Sunil Tewari, to the applicant, and one to the applicant and the respondent and Vavoli dated 26 October 2015 with attachments and he filed witness statements from Dr Tewari, Jeesmon Mathew and Maneesh Saseendram.
Included in the emails from Dr Tewari was an email to the respondent dated 7 July 2015 stating “Please work with Roy (the applicant) to buy the electrical fittings (external and internal). Please note that under the contract I will be paying $1500 to you for the purpose...” and an email from Mansa to the applicant dated 14 July 2015 stating that under the contract with their clients they do not cover patch panels, hanging cost of any fancy lights and cost of installation of an off peak meter.
The applicant said that the agreement for the extra work was oral. He said “it is a regular practice in the construction industry that the client gets briefed about every aspect of the job and reaches an agreement to pay for additional work, namely items and work not included in the inclusion list on a case by case basis, through verbal agreements.” He said that it was also a general practice of the trade to accept verbal quotes for work based on mutual trust between parties.
The applicant and the respondent had been friends for more than 10 years and were from the same community background. The applicant said the respondent had approached him to find a builder after researching the market and he had introduced the respondent to Mansa, with whom he had been working for a few years in various projects. Because of this friendship he said he did not follow his usual business process of providing an approval quotation for the work.
In August 2015 and before the applicant had signed the electrical safety certificate the applicant had a discussion with the respondent and confirmed the payment for the extra work. The applicant said that the respondent promised the applicant he would clear the bills for the extra work in no time adding “you can trust me”. The applicant trusted the respondent to pay for the extra work. The applicant said he could have waited for the respondent to pay for the extra work before he signed the electrical safety certificate but he had relied on the respondent’s assurance and their friendship. Instead, when the respondent got the occupancy certificate he completely changed his approach and attitude to the applicant. They ceased being friends when he sent the respondent the invoice for the extra work on 19 September 2015.
The applicant said that the respondent’s claim that the extra work had been done without the respondent’s consent was tantamount to saying that the applicant was a ‘mad’ person as it would be pure madness for anybody to work without direction as a subcontractor. Further, the respondent’s claim that he requested invoices (from the applicant) for all work and that there was no response was wrong. The only contact the applicant had from the respondent was an email dated 20 September 2015, after he had sent his invoice to the respondent, which said:
Hi v guard, all the work done at my place are by mansa construction within the contract limit, and i am pretty sure I have cleared all his bill. I don’t understand why you r sending the invoice to me which has no value, I have nothing to do with you, so pl never miss use my email any more.
The applicant said that the respondent’s claim that “he was demanding more payment unnecessarily because he did not get a direct contract for the work” was also wrong as the applicant had been working with Mansa for the past few years and he had introduced the respondent to Mansa.
As for the respondent’s claim that “he had not made any contract with any of Mansa Construction’s tradies” the applicant said that this was untrue as it was clear from Mansa’s letter dated 25 October 2015 that the respondent had also had a contract with Mansa’s plumber, High Line Plumbing, for the installation of the solar hot water system.
Further, the applicant said the respondent’s claim that he had asked Mr Sunil if there is any settlement pending (around 10 August 2015) and he had been told “all good, everything is clear”, was also wrong. The applicant referred the Tribunal to Mansa’s letter dated 26 October 2015 from Dr Sunil Tewari to the applicant and the respondent in relation to the unpaid solar hot water system installation, the upgrade to the LED Tastics and the unpaid additional electrical work, the subject of this application. That letter stated that the hot water system invoice had been served on the respondent on 11 August 2015 and when Dr Tewari had reminded the respondent to pay the invoice, the respondent had said it will be paid within 14 days. Dr Tewari stated in that letter that for two months the respondent had been ignoring Mansa’s communications by claiming there was a problem with his phone and email. The hot water system invoice remained unpaid as at 26 October 2015. This letter also refers to the electrical work the subject of this application and states that this work was ‘out of contract’ with Mansa. It was payable by the respondent to the applicant.
Dr Sunil Tewari
Dr Tewari, a Director of Mansa, provided a witness statement for the applicant which stated:
On behalf of Mansa Consulting Pty Ltd I state the following:
Titus John have directly engaged my electrician Mr Roy (the applicant) to do additional electrical work that was out of contract between Mansa Consulting Pty Ltd (Builder) and Mrs and Mr Titus John (Client). Additional electrical work was negotiated and directed by Mr Titus John without my involvement. During the construction, I have witnessed on several occasions that Mr Titus John and Mrs John have been discussing and verifying additional electrical work with my electrician Mr Roy.
Given that my electrician Mr Roy and my client Mr Titus John are from similar cultural background, In presence of Mr Titus John, I have advised Mr Roy to collect the payment of doing any additional work directly from Mr Titus John as it is not included in the contract between Mansa Consulting and Mr John. …
Notwithstanding accusations from the respondent that he was telling lies, Dr Tewari corroborated the contents of his witness statement in his evidence. He told the Tribunal that all of the work that the applicant is claiming is real; was done at the respondent’s request; was not done at his, Dr Tewari’s, direction and was not part of his contractual agreement with the respondent.
Under cross examination Dr Tewari was asked what the procedure was if the respondent had wanted to change the work in the contract. Dr Tewari said that, for anything out of contract, if his company was to oversee the work, the respondent should have given him a written request which he would have evaluated. He would have included his fee for this out of contract work. He said that the respondent had not requested him to do the extra work. He assumed that the applicant was working directly with the respondent for the extra work because of their close family friendship and because the respondent wanted to avoid paying his fee.
When also asked under cross examination whether he agreed that the respondent had told him in the beginning that he had the contract with Mansa and would only deal with Mansa and did not want to deal with the applicant, Dr Tewari said that he did not agree.
The respondent
The respondent denied that there was an oral agreement with the applicant. While acknowledging that the work claimed by the applicant had been carried out, he maintained that apart from the installation of the chandeliers, fancy light fittings and the fan and the Tastic light upgrades, all the work carried out by the applicant was included in the inclusion list.
The respondent denied that he had approached the applicant to find him an affordable builder. In his statement filed 16 May 2016 he said:
2) I did not approach the electrician to find me an affordable builder I was very well organised the process is as follows:
: My architect who did my plan suggested some of his reputed (sic) builders, and it was in the final stage and also I was offered a descent (sic) price.
: Electrician introduced Mansa construction for his benefit so that he can get work from Mansa construction.
: Builder used ethnicity to convince me, so as to know the value of ethnicity I decided to go with the builder, after builder organised many meetings with me to get convinced and gave lots of promises.
The respondent told the Tribunal that he had told Dr Tewari that he was not going to contract with the builder’s tradies because the applicant was his friend of more than 10 years and he did not want to give him the work. He said that Dr Tewari had agreed to this.
He also said that when he had met with the applicant, at the request of Mansa, he was clear in telling the applicant that he wanted to go with the contract and the inclusion list because he was paying a lot of money to Mansa. He claimed that the applicant had told him not to bother following the original list and to tell him what he (the respondent) wanted. He replied that he wanted what was in the inclusion list because he had given the full contract to Dr Tewari who had included what the house needed.
He acknowledged that he had requested the applicant install two chandeliers, three fancy hanging lights and one fan which he had purchased. He agreed to pay the applicant for the installation of these items. He said he had not yet paid for this work.
He said he had requested Dr Tewari upgrade the Tastic lights in all three bathrooms and on 6 August 2015 he had transferred the invoiced amount of $376 to Mansa and Mansa should pay this money to the applicant.
He also said that the applicant had called him when installing the external sensor lights and asked him if he wanted to upgrade them. He agreed to upgrade the sensor lights for $500 and he paid the applicant $500 in cash. He asked the applicant for a receipt for this payment and he did not receive one. He said he had several times, starting in July 2015, requested the applicant provide him an invoice for the extra work for installing the lights and the fan but the applicant did not provide an invoice.
The respondent said that he had asked Dr Tewari, prior to his taking occupation of the property in August 2015 whether there was any settlement pending and Dr Tewari had told him that everything was clear.
In cross examination, the applicant asked the respondent if he had attended a meeting at the property with Dr Tewari and the applicant when the applicant was doing the electrical safety sign off before the respondent could occupy the property and when the applicant asked him about the payment for the extra work and the respondent had told the applicant that he would pay him. The respondent said that this conversation did not happen and they never had a meeting.
In response to questions from the Tribunal the respondent said he had not seen the inclusion list for the electrical work as he had provided it to the bank. He said it was not his duty to know what was in the inclusion list. He said he had no idea of the electrical cost for the items in the inclusion list. He also said he had not counted the number of light points, or the number of power points in his property although he knew that a significant part of the dispute concerned the applicant’s claim that he had installed 36 extra light points and 13 extra power points.
Ms Shiji John
Ms John told the Tribunal that she and her husband had attended the applicant’s house at the request of their builder to talk about the electrical work. They decided not to go for anything apart from what was in the inclusion list. They went to their property two days after this meeting to show the applicant where they wanted their electrical items so he could mark the property.
Ms John said that she did not request the applicant carry out any extra electrical work.
In cross examination Ms John was asked about the meetings at the property when the applicant was working there. She said she and her husband were there often and they discussed “friendship, everything, housing or whatever with the applicant but I did not say any changes for the job.”
Ms John said that not once did the applicant mention the lights would be an extra cost. She said “We don’t know everything. We don’t have any experience.”
In response to questions from the Tribunal, Ms John said that the applicant had installed the down lights and the power points and done the work claimed in his invoice. She said however, she had not counted the light points or the power points in the property.
Consideration
The onus is on the applicant to prove his case on the balance of probabilities. That is, he must establish that:
(a)there was an agreement between the parties pursuant to which the respondent requested the applicant carry out work and the applicant agreed to carry out work for the respondent in exchange for payment;
(b)the applicant has complied with the terms of the agreement by carrying out the work;
(c)the respondent has not paid for the applicant’s work;
(d)and, therefore, the respondent owes the applicant a sum of money under the agreement, which is recoverable as a debt.
The relationship between the parties and between the respondent and Dr Tewari was acrimonious. It was apparent during the hearing that all trust had completely broken down. The parties accused each other of lying and the respondent accused Dr Tewari of lying.
Apart from the respondent agreeing that he was liable to pay for the installation of the chandeliers, fancy lights and the fan, and the agreement between the respondent and Dr Tewari that the respondent pay Mansa $376 for the upgraded Tastic lights, the evidence from the parties and their witnesses conflicted. It fell to the Tribunal to determine whose evidence it prefers.
The applicant and Dr Tewari’s evidence was consistent. The applicant said he had undertaken ‘out of contract’ electrical work for the respondent. This work was not included in the inclusion list. Dr Tewari’s evidence was that the applicant had undertaken extra electrical work for the respondent and that the extra work was ‘out of contract’.
The applicant’s evidence was that he had undertaken this extra work at the request of the respondent. He agreed to do the extra work for the respondent at the same rate per item that Mansa was charging the respondent for the electrical work in the inclusion list. He believed he had an oral agreement with the respondent to undertake the extra work and to be paid for it. He carried out the extra work in accordance with this agreement. He said that before he signed off the electrical safety certification for the property in August 2015 he had asked the respondent about payment for his extra electrical work and the respondent had said he would pay and that he could trust him.
Ms John agreed that the work in invoice 511 had been carried out. The respondent did not deny that the work had been carried out. He alleged that this work, apart from the upgrade of the Tastic lights in the bathrooms, the chandeliers, the fancy lights and the fan, was included in the inclusion list and that there was no oral agreement between the parties for the applicant to carry out this extra electrical work or for the respondent to pay the applicant for this work. He submitted that Mansa, the builder, was liable for the cost of the extra work.
The Tribunal was surprised that neither the respondent nor Ms John had read the electrical inclusion list. The respondent claimed that it was not his duty to know what was in that list even though the building contract was between Mansa and himself. The Tribunal found this evidence unhelpful. It was difficult to reconcile the respondent’s evidence that he did not know what was in the inclusion list because he had not read it, with his evidence that the work claimed by the applicant was included in the inclusion list which he had not read.
The respondent also gave contradictory evidence. He said he had told Dr Tewari that he would not be using Mansa’s tradies whereas it is clear from Dr Tewari’s evidence that the respondent also had a contract with Mansa’s plumbing sub contractor, High Line Plumbing, for the installation of the solar hot water system. He said that the applicant had not introduced him to Mansa yet as stated in [35] above, he acknowledged that the applicant had introduced him to Mansa.
Ms John told the Tribunal that she and the respondent ‘don’t know everything’ and ‘don’t have any experience’. This evidence was also unhelpful as it did not assist the Tribunal in determining whether or not there was an oral agreement and whether the work the subject of this claim was extra to the work in the inclusion list. Ms John did concede that the extra work had been carried out by the applicant. The Tribunal observes if it was the case that the respondent and his wife did not have any experience in building a house no explanation was given in evidence as to why they did not seek legal advice about their rights and responsibilities in their building contract.
Neither the respondent nor Ms John knew how many light points or how many power points were included in the inclusion list. They also had not counted how many light points or how many power points were in the property. They knew from the applicant’s invoice that a major part of his extra work was installing 36 extra light points and 13 extra power points. Their evidence was unsatisfactory as it did not provide any objective measure which might have assisted the Tribunal in determining the issues. The respondents have been residing at the property for 12 months and should have been able to provide evidence of the number of light points and power points in the property which may have enabled the Tribunal to determine whether there was any merit in their claim that the work was included in the inclusion list. Without this evidence, the Tribunal found that it could not safely rely on the respondent’s and his wife’s evidence.
The Tribunal has considered all of the oral evidence and the written material before the Tribunal. Where the evidence before the Tribunal differs, the Tribunal prefers the evidence of the applicant and Dr Tewari. The applicant’s evidence was not shaken under cross examination. He was a credible witness. Dr Tewari’s evidence corroborated the applicant’s evidence. Dr Tewari was a credible witness. Notwithstanding heated cross examination his evidence was not shaken. The Tribunal has found, for the reasons set out above, that the respondent’s and Ms John’s evidence was unsatisfactory.
The Tribunal is satisfied and finds that the work the subject of invoice 511 was not included in the inclusion list; it was extra electrical work, or out of contract work.
The Tribunal also is satisfied and finds that there was an oral agreement between the parties for the applicant to carry out the extra electrical work and for the respondent to pay the applicant for that work. The Tribunal accepted the applicant’s evidence that the respondent had raised the extra work in April 2015, some two days after his meeting with the applicant and, that the applicant agreed to charge the respondent the same rate per item as charged by Mansa for the electrical work in the inclusion list, and that the applicant had to re-mark all the ground work to accommodate the changes. The Tribunal finds that the applicant would not have had to re-mark the ground if the respondent and his wife had not asked the applicant to carry out extra electrical work.
The applicant said that during the discussion at the property in April 2015 the respondent agreed to pay the applicant for the extra work after the commissioning of the project. This accords with the applicant’s evidence of the discussion with the respondent in August 2015, shortly before the commissioning of the project.
While the respondent denied that a meeting took place in August 2015, the Tribunal preferred the applicant’s evidence that this meeting had taken place and that he had raised the payment of his extra electrical work with the respondent, before he signed the electrical safety certificate required for the certificate of occupancy application and that the respondent told the applicant to trust him and that he would pay. The applicant said if the respondent had not agreed to pay for this work, he would not have signed the electrical safety certificate.
The respondent did not challenge the calculation of the applicant’s costs in invoice 511. The applicant said that the costs were calculated at the rate charged by Mansa. The Tribunal accepted the applicant’s evidence.
However, the Tribunal has noted that the respondent has already paid Mansa $376 for the upgraded tastic two globes and that he paid that amount to Mansa within six or so days after receiving the invoice from Mansa. Having considered this evidence the Tribunal is satisfied that the request for the upgraded Tastic lights was made to Mansa and not by the respondent to the applicant. The Tribunal is not satisfied that the respondent should be liable to pay for the remaining costs of $215 for the Tastic four globe or the freight charges of $55. These amounts should be paid by Mansa.
The Tribunal is satisfied and finds:
(a)there was an oral agreement between the parties pursuant to which the respondent requested the applicant carry out work and the applicant agreed to carry out work for the respondent in exchange for payment;
(b)the applicant has complied with the terms of the agreement by carrying out the work;
(c)the respondent has not paid for the applicant’s work; and
(d)the respondent owes the applicant a sum of money under the agreement which is recoverable as a debt.
The Tribunal is satisfied and finds that the extra work the subject of the oral agreement and carried out by the applicant was installing:
Total number of light points extra 36 $2,772.00 Total number of power points extra 13 $786.50 Fancy light installation 3 $330.00 Chandelier installation 2 $220.00 Ceiling fan installation 1 $154.00 Total number of two way switch extra 15 $742.50 Total number of data point extra 2 $176.00 TOTAL $5,181.00
The amount of $5,181 includes the agreed sum of $704 for the installation of the chandeliers, fancy lights and fan and excludes the costs claimed for the upgrading of the Tastic lights of $640.00. For the reasons set out in [65] above the applicant should seek payment of $640 for the upgrading of the Tastic lights from Mansa Consulting Pty Ltd.
Conclusion
The Tribunal is satisfied, on the balance of probabilities, the applicant and the respondent had an oral agreement for the applicant to carry out extra electrical work at the property, over and above what was included in the electrical inclusion list, and the respondent agreed to pay the applicant for the extra work on the commissioning of his property. The Tribunal is satisfied that the applicant carried out the extra electrical work and that the respondent has failed to pay the applicant for the extra work.
Given the Tribunal’s conclusion in the preceding paragraph, it is not necessary for the Tribunal to consider a claim for quantum meruit.
The applicant also sought an order that the respondent pay his costs incurred in attending the tribunal on 21 June 2016, when the respondent’s application to have the default judgment dated 24 May 2016 set aside was heard. The applicant had appeared on the original hearing date, 24 May 2016, and the respondent had not appeared on that day.
Section 48 of the ACAT Act provides:
48Costs of proceedings
(1) The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.
(2) However—
(a) if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant––
(i)the filing fee for the application; and
(ii) any other fee incurred by the applicant that the tribunal considers necessary for the application; or
(b) if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or
...
In this matter the Tribunal is satisfied that the applicant is claiming income which he lost because he had to attend the tribunal when the respondent’s application to set aside the judgment was heard. This attendance would not have been necessary if the respondent had attended when the matter was first listed. This caused delay in the final resolution of the matter and caused unnecessary lost income for the applicant. The applicant stated in his letter to the tribunal dated 24 July 2016 he is requesting $50 per hour being loss of work time of an A grade electrician for four hours. The Tribunal is satisfied that the applicant is a sole trader, that he lost work time attending the tribunal on 21 June 2016 and this is attributable to delay on the part of the respondent. The Tribunal is satisfied that the respondent should pay the reasonable costs of the applicant arising from this delay and assesses these costs at two hours lost work or $100.
Accordingly, the Tribunal will enter judgment for the applicant for $5,734.45 being:
(a)$5,181 in satisfaction of the amount owing to the respondent pursuant to the oral agreement and in satisfaction of the amount due under invoice 511;
(b)the filing fee of $140;
(c)interest from 5 September 2015, being the date of invoice 511, on $5,181 calculated in accordance with the Court Procedures Rules 2008, $313.45; and
(d)the applicant’s costs, assessed at $100, in attending the tribunal on 21 June 2016.
………………………………..
General President L Crebbin
for and on behalf of President E Symons
HEARING DETAILS
FILE NUMBER: | XD 138 of 2016 |
PARTIES, APPLICANT: | Ealias Varghese Trading As V Guard Electrical Services |
PARTIES, RESPONDENT: | Thuindyal John Titus John |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | President E. Symons |
DATES OF HEARING: | 17 August 2016 |
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