Waid v Belden

[2010] QCAT 425

CITATION: Waid v Belden [2010] QCAT 425

PARTIES:	Ms Caroline Patricia Waid
V
Mr Kel Belden

APPLICATION NUMBER:   BD256-08     

MATTER TYPE: Building matters

HEARING DATE:     22 June 2010

HEARD AT:  Mackay

DECISION OF: Mr Jim Allen

DELIVERED ON: 13 August 2010

DELIVERED AT:      Brisbane

ORDERS MADE: That the Respondent pay to the Applicant the amount of $3,000 as damages for the negligent installation of an above ground pool by 4.00 p.m. on 20 September 2010.

CATCHWORDS :  Domestic Building Contracts Act -section 30, Oral building contract, swimming pool installation, negligence.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Ms Caroline Waid
RESPONDENT:	Mr Kel Belden

REASONS FOR DECISION

1. Mrs Caroline Waid alleges that Mr Kel Belden entered an oral agreement with her to install a pool she had purchased from Pro Pools of Mackay in October 2007. Mrs Waid alleges that Mr Belden requested payment of $4,600 for the pool installation work and that she paid Mr Belden in cash the amounts of $1,500 on 26 October 2007 with a further amount paid of $1,500 on or about 6 December 20087 and that under his direction she made payment to Mr Simon Hulbert of an amount $1,100 at a later date. Mrs Waid alleges that the pool installation was defective and that she is entitled to damages for the loss she has suffered as a result of the defective work.

2. Mr Kel Belden admits that he was an employee of Pro Pools at the time and that he was the sales consultant who sold Mrs Waid the pool. Mr Belden denies that he entered any agreement with Mrs Waid to install the pool or that he accepted any money from her for the pool installation work.  Mr Belden claims that he gave Mrs Waid Mr Simon Hulbert’s details as someone who would be able to install the pool and that it was Mr Hulbert who installed the pool.

3. The question for the Tribunal then is not only whether or not the work performed was defective and if any damages are payable to the applicant as a result but firstly whether Mr Belden is the party whose actions resulted in the damages.

The Law

1. This matter was originally filed in the former Commercial and consumer tribunal and in accordance with section 271 of the Queensland Civil and Administrative Tribunal Act 2009 this Tribunal has the same functions as the former tribunal and can only make a decision the former tribunal could.  The jurisdiction in regard to this type of matter is founded in the Queensland Building Services Act 1991 section 75 in respect of jurisdiction and 77 for types of decisions. The jurisdiction includes reviewable building work under the Domestic Building Contracts Act 2000 and the types of decisions include the award of damages.

2. The installation of a pool for an amount of $4,600 constitutes domestic building work. It is a requirement of the Domestic Building Contracts Act 2000 that a contract for work of this type worth more than $3,300 be in writing and if that is not the case the contract is not enforceable in accordance with section 30 of that Act. This in accordance with the decision in B&L Builders Pty v Petersen [2007] CCT limits the claim of Mrs Waid to defective workmanship or negligence and that neither party can rely upon any verbal agreement as to the works by way of support of their claims.

The Evidence

1. Mrs Waid provided extensive submissions in regard to her dealings in respect of the purchase and installation of an above ground pool with attached spa that she had purchased from Pro Pools in Mackay.  Mrs Waid alleged that she had dealt with a Mr Kel Belden in regard to the purchase of the pool and that she had accepted a quote over the telephone on 24 October 2007 from Mr Belden in the amount of $11,780 in respect of the pool including a council permit and an amount of $4,600 in respect of the installation of the pool, payable $1,500 deposit, $1,500 midway and $1,600 on completion. This had followed a previous attendance by Mr Belden at her property for the purpose of giving a quote for the supply and installation of an in ground pool. Mrs Waid alleged that Mr Belden had tried to persuade her to avoid the expense of a council permit for the pool as most people did not bother for above ground pools. She alleged that Mr Belden had requested that he be paid the $1,500 cash as soon as possible to enable the preparation for the pool installation to begin on the weekend commencing 27 October 2007. She submitted that she had attended at her bank on 25 October 2007 and withdrew $2,000 cash for the purpose of paying the first payment for the installation to Mr Belden. Mrs Waid produced her bank statement at the tribunal hearing which showed the withdrawal from the account on 25 October 2007. Mrs Waid alleged that Mr Belden had attended at her property on 26 October 2007 and collected a cheque for the deposit on the pool and the amount of $1,500 in respect of the installation and that he did not provide a receipt for either of the payments nor a copy of the quote for the pool. Mrs Waid confirmed that she later received a receipt for the deposit on the pool and a written quote for the above ground pool to be supplied and delivered, a copy of which dated 24 October 2007 she provided to the Tribunal.

2. Mrs Waid alleged that she tried to contact Mr James Beale the proprietor of Pro Pools many times in the next couple of weeks and that she did not hear from Mr Belden for 2 to 3 weeks. Mrs Waid alleges that Mr Belden advised her that “he hadn’t run away and was ready to install my pool, had cement in his garage and had drawn up a plan.” She alleges that she queried Mr Belden about non-supply of a written quote for the installation and timber deck construction and receipt for the cash he had taken. She alleges that Mr Belden had told her that Pro Pools had run out of letter head. She alleges that Mr Belden told her that he was no longer working for Pro Pools but with them, doing installations like hers when Pro Pools sold above ground pools, and that he was taking over the Mackay franchise of Leisure Pools.

3. Mrs Waid stated that she received a call from Toll Express on 30 November advising that they would be delivering the pool on Monday, 3 December 2007 to her property. Mrs Waid alleges that on 1 December 2007 she received a call from a person who identified himself as “Simmo from Pro Pools, and that he wanted $600 cash up front to do the dig. She alleges that she told him that she had already paid you people $1,500 cash with no receipt and had asked him to get Mr Belden or Mr Beale to ring her. She stated that at the time her phone number was silent and that she had given the number to Pro Pools and Mr Belden with instructions not to pass it on. Mrs Waid stated that this was the only phone contact between herself and Simmo. She noted that the Queensland Building Services Authority later advised her, his name was Simon Hulbert.

4. Mrs Waid states that the pool arrived on 3 December 2007 and that the driver said he had been told there would be someone there to help unload on-site. She stated that due to the driver being unable to access the driveway the boxes containing the pool had been left at her gate and the driver had returned to Pro Pools with the heavy spa. She alleged that she rang Mr Belden and left a message and when he returned the call he said he would attend the next day to deliver the boxes to the site. She stated that he did not do this and she had to move the boxes herself with a wheel barrow. She alleged after this she had rung Pro Pools on 4 December 2007 complaining and threatening to cancel her contract. She said that she was then able to speak to Mr Beale for the first time. She alleged that Mr Beale told her that he had never seen the cash she had paid to Mr Belden and he had been told by Mr Belden that she had not accepted their quote for the installation. She stated that Mr Beale had denied any knowledge of a contract written or oral for Pro Pools to do the work. She alleges that Mr Beale said that if she changed her mind all she would get would be second-hand prices for the goods she had ordered. She stated that she had asked Mr Beale when Mr Belden had left the company and he had indicated that Mr Belden had not put in a timesheet since August. Mrs Waid in her written submission queried why the building permit form names James Beale as the builder. Mrs Waid provided the tribunal with part of the building application which lists James Beale as the builder and shows the value of the building work as $11,780 and lists her as the owner. Attached to the application is an approved plan for a pool at Mrs Waid’s address.

10. Mrs Waid alleges that on 6 December 2007 Mr Belden showed up at her property with Don (a labourer) and a Kanga excavator. She alleges that they began excavating and putting together the pool. Mrs Waid alleges that Mr Belden requested another $1,500 so that he could pay the labourers and keep things moving and that he again refused to give her a receipt. Mrs Waid produced a bank statement at the hearing which showed that she had withdrawn $3,500 cash from her bank account on 3 December 2007. Mrs Waid alleges that she contacted Mr Beale at around this time to ask him to see if he could get Mr Belden to enter a contract and provide receipts for the cash. She alleges that Mr Beale called back and stated that the reason Mr Belden would not supply receipts was that if he did he would have to pay GST.

11. Mrs Waid alleges that on either 7 December 2007 or 11 December 2007 Simmo showed up and was introduced as Simon Moohin and that Mr Belden always referred to him by that name. She alleges that work continued on 11 December 2007 and that Mr Belden rang her and asked her to pay another $1,100 to Mr Moohin $100 (for fuel) and $1,000 in cash. She alleges that on 12 December 2007 Mr Belden had offered to dig a trench for the electrical wiring for an extra $50. She stated that Mr Moohin was the excavator operator and that they had cut the water pipe and tried to repair it with duct tape.  She said they left before the arrival of the plumber she called. She stated Mr Belden had left before this happened and that Mr Belden had never returned to the site to see what he had done.

12. Mrs Waid alleges that the two labourers returned on 13 and 14 December 2007. She states that on 14 December 2007 the pool was nowhere near finished and merely propped up on pavers. She stated that she read the manufacturer’s guide which made her realise that they had not followed a crucial instruction to level the site first. She stated that the pool liner had not been connected to the spa. She alleged that Mr Belden had told her that he had done a course at Pool World Brisbane but she had overheard him telling the others that he would look on the internet to find out how to install the steps/spa attachment. She stated that Mr Hulbert was telling her to have the pool filled and that the pump filter were still sitting on her back deck. Mrs Waid alleges that Mr Hulbert made a demand for the final $500 owing after she had noted that they were packed up ready to abandon the site. She alleged that she said she wanted to talk to Mr Belden and that there was still work to be done. She alleges that Mr Hulbert had offered to let her hold back $100 and that when she said no he had left yelling that “Mr Belden will be angry”. She alleges that she then rang Mr Belden’s number and left a message.

13. Mrs Waid alleges that Mr Belden called her on 15 December 2007 and that he had told her he would give her contact details for builders who would tell her what a good builder he was. That the Pool world guide was only a guide and she should have let them build the pool the way they wanted to without any input from her. That he had said she should not have been on site and he had never wanted to do the job and that she should have done it. She said he had made another demand for the money still owing and even more cash to cover up the dodgy work. That Mr Belden had also said the pool was ready to fill. She stated that she mentioned going to consumer affairs and terminated the call.

14. On 17 December 2007 Mrs Waid states that she rang the private certifier that Pro Pools had engaged. She alleged that she also rang Mr Beale and reminded him that the pool should have been inspected before she was told to fill it to more than 30 cm depth and that Mr Beale had demanded to know when the pool was to be inspected and said he would be there. Mrs Waid states that the Certifier arrived in the afternoon on 18 December 2007 and immediately told her that the pool would not pass and would probably need dismantling. Mrs Waid provided a copy of a building certifier’s report dated 18 December 2007 in respect of a pool at her address. The inspection resulted in a non-compliance certificate stating that the pool was not to be filled, the pool appears to be not constructed in accordance with engineer’s drawings and details, and the pool is not located as per approved plans. Mrs Waid alleges that a person arrived after the certifier who she assumed to be Mr Beale and that he had said the pool was fine and only needed a little cosmetic touching up. She alleges that he advised her to sue the certifier and pay Kel $500 owing and Kel might consider finishing the pool if I pay even more. She states that she realized Mr Beale was part of the scam and ordered him off the property.

15. Mrs Waid confirmed that she had requested the Queensland Building Services Authority (QBSA) to investigate and states that Messrs Belden, Hulbert and McBrown conspired to lie in their sworn statements, saying Mr Hulbert was the person she had a “cash deal” with. In her letter to the QBSA Mrs Waid stated that your licence holder QBSA 631738 has charged her $4,100 cash to put up this pool and consider it finished and ready to fill. The sub-contractor Kel Belden refused to supply written quotes and receipts and would not accept cheques. That the manager of Pro Pools refuses to accept responsibility for the way in which the pool has been constructed. Mrs Waid provided a statement of contractual agreement to the QBSA declaring that the contractor was James Beale and that Kel Belden had acted on behalf of the contractor.

16. Mrs Waid also provided to the Tribunal a copy of a letter from the Insolvency and Trustee Service Australia to Mr Belden dated 2 September 2008 confirming that he had been discharged from bankruptcy on that day and a tax invoice dated 12 May 2009 from Kel Belden to Palm City Pty Ltd for the installation of a pool.

17. Mr Belden in his defence admits that he was an employee of Pro Pools at the time of the purchase of the pool and that he was the sales consultant who dealt with Mrs Waid. He denies entering any agreement with her for the installation of the pool saying that he gave her the contact details for a Mr Simon Hulbert who could assist her in the pool installation. He alleged that he obtained Mr Hulbert’s details from an A4 sheet of paper pinned to the office wall. Mr Belden admitted that he had attended at Mrs Waid’s property to ensure she had the room for the pool. He alleged that the only money he had received from Mrs Waid was for the sale of the pool and this was done at the Pro Pool’s office.  Mrs Waid in her submissions denied that she had ever attended at the Pro Pool office. Mr Belden denies ever having received monies from Mrs Waid for the installation of the pool. Mr Belden confirms the QBSA investigation and noted that the QBSA decided that Mr Hulbert was the contractor responsible for the installation of the pool and that the QBSA issued Mr Hulbert with a direction to rectify the pool installation.

18. Mr Belden stated he had only visited Mrs Waid’s home on four occasions. Once when he sold the pool to make sure she had the room. The second time was when a Kanga Dingo he had hired to Simon Hulbert from the company he now worked for had run out of petrol; he confirmed he was the manager for Leisure Pools. He alleged that it was during this visit that he had informed Mrs Waid that he no longer worked fro Pro Pools. The third time was when a day later the dingo would not start and he drove out and fixed a faulty battery cable. He alleges that two days after this Mrs Waid had rung his office a Leisure Pools and told him that she had read the install guide and the pool was not being built in accordance with the guide. He alleges that he informed her it was a guide only for do it yourself people, builders have many different ways of building. He alleges that he told her to ring the manufacturer, and that she was informed of the same thing that the guide supplied is just a guide. He alleges that he then went out at her insistence to have a look. When he turned up she had ordered Simon Hulbert off the site. He alleges that he again pleaded with her that the install guide is not for builders but for do-it-yourself people. He alleges that Mrs Waid became abusive and ordered him off the site.  He states that Mrs Waid arranged for James Beale to visit the site and he was ordered off when not compliant with her wishes.

19. Mr Belden in his reply to Mrs Waid’s submissions, dated 23 February 2010 denied that he had tried to persuade her not to get a building permit for the pool. He stated that he had sold over 150 pools in Mackay and every one of those had a permit. Mr Belden denies arriving with a Dingo and started work with Mr McBrown noting that he had already stated that he had dropped the Dingo off. He denies that he worked on site less and less stating that he never worked on-site. Mr Belden stated that in his opinion Ms Waid started this confrontation and did not involve me or take any action against me until she could no longer recover monies from the contractor found liable or from Pro Pools, my employer at the time. Mr Belden also denied that there was any arrangement between himself, Mr Beale, Mr McBrown and Mr Hulbert. Mr Belden states that his bankruptcy resulted from his wife’s medical expenses and acknowledged that he had installed pools in the Northern Territory but there was no licence requirement in the Northern territory.

20. Mr Belden provided a letter from Simon Hulbert dated 1 December 2009 in which Mr Hulbert confirms that he was the contractor/builder that took on the works at Mrs Wades (sic) home and that Kel Belden was the salesman of the pool and nothing more. Mr Hulbert states he has already been fined for this mistake and he was the only person to receive payment for the work. A copy of SPER letter dated 23 June 2008 to Mr Hulbert in regard to a $1,500 fine for failure to rectify work at Mrs Waid’s address is also enclosed.

21. As mentioned the Queensland Building Services Authority (QBSA) investigated the pool installation at Mrs Waid’s request. The Tribunal received copies of various QBSA documents including the Initial Inspection Report of Michael Hulme dated 13 February 2008. Present at the time were the inspector, Michael Hulme, Mrs Waid and Mr Beale. The report confirms that Mrs Waid and Mr Belden gave their respective versions of events to Mr Hulme. In regard to payments of money the report notes that while she believes she paid $1,500 to Mr Belden on 6 December 2007 she could not be 100% sure as she was on medication. The report notes that Kel Belden, Simon Holbert and Don McBrown do not hold any BSA licences.  That James Beale is the person named as the builder in part b of the development application and his licence is noted on the form, Pro Pools has also paid Building Approvals & Consultancy Pty Ltd for the private certification. The report finds that the pool has yet to be completed and that one item in regard to the attachment of the spa would require rectification. The report concludes that the licensee (James Beale) is not responsible as he has only supplied quote for supply only and that others are responsible for the pool installation. The report states in its recommendation wait on statements from Kel Belden, Simon Holbert & Don McBrown to determine who BSA will direct to rectify.

22.  The QBSA sent a letter to Mrs Waid on 10 April 2009 advising that Mr James Beale did not carry out the building work and he is not responsible for the defective and incomplete work. It then stated that “our investigations have revealed that Mr Simon Hulbert is the person responsible for the installation of your swimming pool and therefore the BSA has issued him with a direction to rectify and/or complete. Following this a re-inspection occurred on 13 May 2008 with a report dated 14 May 2008, present at the time were the inspector, Mr Hulme and Mrs Waid. The report confirms that no rectification work had been carried out. The report noted that Mrs Waid believed that BSA should be directing either James Beale from Pro Pools or Kel Belden. In a letter to Mrs Waid dated 15 May 2008 the BSA set out the areas in regard to the pool installation which were not satisfactory and noted that it was the BSA opinion that the pool will have to be dismantled in order to rectify the items. Mrs Waid provided a further letter to her from the QBSA dated 13 May 2010 in answer to certain queries she had in respect of the QBSA’s previous reports. Relevantly it noted that Mr Beale advised that the Development Application was filled out by someone in his office and that Mr Kel Belden drew the site plan. He also confirmed that he drew an amended site plan when the certifier would not accept the original one. It is also stated that the QBSA had made telephone contact only once with M Hulbert.

23.  In her oral evidence at the hearing Mrs Waid confirmed her version of events in regard to her dealings with Mr Belden and Mr Hulbert in regard to the pool installation and produced two bank statements showing that she had made withdrawals from her bank account of $2,000 on 25 October 2007 and $3,500 on 3 December 2007 and that these funds had been used to pay the monies to Mr Belden on 26 October 2007 in the amount of $1,500 and $1,500 on 6 December 2007 and the amount of $1,100 to Mr Hulbert. Mrs Waid stated that she had had the pool re-installed at a cost of $5,000 and agreed to provide the Tribunal with a copy of the receipt for this work following the hearing. The Tribunal notes that Mrs Waid sent a copy of a quote for the work to dismantle and reinstall the pool in the amount of $5,333 from Frahms for Pools and Spas dated 15 September 2009.

24. In his oral evidence to the Tribunal Mr Belden denied that he accepted the amount of $1,500 from Mrs Waid on 26 October 2007 and confirmed that he had put her in touch with Simon Hulbert during the sale. Mr Belden admitted that he had dropped off the Kanga Dingo which he claimed he had hired to Mr Hulbert from Leisure Pools. He further stated that as far as he could recall no docket had been created in regard to the hire. Mr Belden admitted that he had drawn the plans for the council permit and that he had attended at Mrs Waid’s residence after she rang him distressed about how the pool was built. He confirmed that he had told her the guide was a guide only.

25. Mr Simon Hulbert gave oral evidence at the hearing. Mr Hulbert stated that his occupation was concretor. Mr Hulbert identified Mr Belden as the salesman of the pool. He stated that he had taken money from Mrs Waid for the pool installation and that she would have a piece of paper. He stated that he could not remember when he had spoken to Mrs Waid. He stated that he had done several jobs for the installation of above ground pools sold by Pro Pools. He further stated that it was a cash job done on a weekend and would be at a cost of $3,000 to $4,000. He said he had received a fine from the QBSA for $1,500 in regard to the work. Mr Hulbert stated that the first he knew o the QBSA investigation was the letter advising him of the fine for the pool being poorly installed. Mr Hulbert stated that the Dingo had been hired from Kennards and that he had no dealings with Mr Belden in regard to the pool installation.

Conclusion

26.  The Tribunal is confronted with choosing which version of events is the most probably true in this case and it is not helped by the internal inconsistencies in each of the stories of Mrs Waid and Mr Belden. Mrs Waid states that she originally thought she was contracting with Pro Pools for the installation of the pool yet she was prepared to provide a cheque for the deposit on the pool and cash for the deposit on the pool installation and when she did not later receive a quote or receipt for the pool installation she allowed herself to be fobbed off with excuses by Mr Belden. Despite Mr Belden not honouring commitments and telling her that he was no longer employed by Pro Pools she was also prepared to pay him more money when he asked for it at the start of the pool installation on 6 December 2007. Mr Belden while he admits that he had a continuing involvement in the pool installation even though he had ceased working for Pro Pools before the installation started denies that he was part of the arrangement for the pool installation. He claims that he hired the digger to Mr Hulbert and visited the site on a number of occasions to either provide petrol for or repair the digger. Mr Hulbert for his part stated that the digger was hired from Kennards and that Mr Belden had no involvement. Both Mrs Waid and Mr Belden confirm a conversation held after the work had been stopped by Mrs Waid on the pool installation in which Mr Belden had said that Mrs Waid should not rely on the manufacturers guide, though Mrs Waid said it was a telephone conversation and Mr Belden said he came out to the site. The fact was that Mr Belden was still involved despite him no longer being with Pro Pools and supposedly at a time when he had no contractual relationship with Mrs Waid. The Tribunal notes that both Mrs Waid and Mr Belden confirm that Mr Hulbert was involved in the pool installation and that it is the question of whether Mr Hulbert was the person that Mrs Waid contracted with on which the parties disagree. While there is much mention of Mr James Beale’s involvement in this matter Mr Beale was not made a witness by either party and so the evidence in regard to him cannot be fully tested. The Tribunal notes though that the QBSA report confirms that Mr Beale visited the site and he was ordered off the site by Mrs Waid.

27. It is clear that Mrs Waid purchased an above ground pool which required installation and that Mrs Waid had dealt with Mr Belden in the purchase of the pool. The Tribunal accepts Mrs Waid evidence that she withdraw $2,000 from her bank account at around the time she agreed to buy the Pool from Pro Pools and that while she may have been confused over whether she was dealing with Pro Pools or Mr Belden she paid Mr Belden the amount of $1,500 as a deposit for the installation. The Tribunal does not accept that Mrs Waid would have purchased the pool which she knew she could not install herself and agreed to have someone she had no knowledge of install the pool. Mr Belden’s involvement prepared the plans for the council permit while he was an employee of Pro Pools and then his involvement continued in arranging for the digger that was to be used to prepare the site at a time when he was no longer employed by Pro Pools and had no reason to be involved. While this is contradicted by Mr Hulbert evidence that the digger was supplied by Kennards and Mr Belden had no involvement, Mr Belden has admitted at least some involvement. The Tribunal prefers Mr Belden’s evidence that he was involved with the digger. Mr Hulbert also stated that he had no contact with the QBSA until he had received the fine notice and this casts doubt on the findings made by the QBSA as to who was the person responsible for the work for the purpose of issuing the direction to rectify in that Mr Hulbert does not appear to have been contacted by the QBSA in that regard except on one occasion by telephone, in accordance with the letter from the QBSA to Mrs Waid of 13 May 2010. The Tribunal is satisfied that on 26 October 2007 Mrs Waid entered an oral agreement with Mr Belden for the installation of the pool.

28.  The Tribunal notes that Mrs Waid withdrew a further $3,500 cash at around the time the pool was delivered for installation on the 3 December 2007 and that she claims to have paid Mr Belden an additional $1,500 which he denies receiving and that she paid an amount of $1,100 to Mr Hulbert on Mr Belden’s instructions. The amount alleged to have been paid to Mr Belden was at a time when the installation had only just begun but the payment to Mr Hulbert was at a time when the pool was not complete and yet Mrs Waid would have then paid $4,100 of an amount of $4,600 she had agreed to pay for the installation. The Tribunal having been satisfied that Mr Belden was the person with whom Mrs Waid contracted for the pool installation accepts Mrs Waid’s evidence that she made the payments of $1,500 to Mr Belden and $1,100 to Mr Hulbert.

29. Having regard to the certifier’s compliance certificate and the QBSA defects notice the Tribunal is satisfied that the pool was negligently installed and that Mrs Waid has suffered loss as a result. The Tribunal notes that Mrs Waid was able to have the pool re-installed and that she provided the Tribunal with a copy of the quote she obtained in respect of the re-installation from Frahms Pools and Spas in the amount of $5,333. Mrs Waid has provided no proof to the Tribunal that this payment has been made. While Mrs Waid has suffered loss she has contributed to that loss by dealing with people who were unlicensed and who even prior to the start of the installation work on the pool had proved themselves to be unreliable. The Tribunal is satisfied that the payment made by Mrs Waid to Mr Hulbert was a voluntary payment made at a time when there was no entitlement to be paid and that amount should not have been paid. Mrs Waid should have required that the work be finished before any further payments be made. The Tribunal is satisfied that Mr Kel Belden entered an oral agreement for the installation of the pool with Mrs Waid and that Mrs Waid paid to Mr Belden the amount of $3,000 on account of that work.

Order

30. The Tribunal finds that the measure of damages in respect of Mr Belden’s negligently performing the oral contract for the installation of the pool is the amount he was paid for the work being $3,000.00 and orders accordingly.

31.  The Tribunal notes that Mrs Waid was self-represented in regard to this matter and there will be no order as to costs.