MM Holdings Pty Ltd v Oaten[2010] QDC 174

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff claims $58,550 as moneys had and received or alternatively as damages for breach of contract and a further $15,260 as damages for breach of contract. The defendant seeks an order that the claim be dismissed. The two primary factual issues are common ones. Was the contractor’s estimate an offer which bound him to the prices in the estimate. Was the contractor the man who provided the estimate or the private company he failed to mention to the client. The defendant’s counterclaim was discontinued.^[1]

     The facts

2. [2]
   The plaintiff company (“MM”) was at material times the registered proprietor of a residential property being built at Cronin Island at the Gold Coast. MM’s sole director, Mr McIvor and his family were to live there. Mr McIvor had a garden master plan prepared.^[2] That plan contemplated removal of an existing fig tree and an existing leopard tree, planting 25 large mature trees including those commonly called frangipani and poinciana, and three of the poinciana trees were to be particularly large. It also contemplated creating numerous small and large garden beds, laying gravel, a new lawn and two garden beds for lillypilly trees.

3. [3]
   Mature trees were a significant feature of the plan and important to Mr McIvor. The defendant, Mr Oaten, had particular experience with acquiring, transporting, installing and maintaining the health of recently installed, large and mature trees and the associated logistics including the need or otherwise for an escort and for police escort for transporting very large trees. His experience was known to Mr McIvor. It was for his particular experience that Mr McIvor sought out Mr Oaten. Mr McIvor provided the plan to Mr Oaten and asked him for an estimate.

4. [4]
   On Tuesday, 16 October 2007 Mr Oaten sent to Mr McIvor by email^[3] an estimate. By the email he wrote, so far as is relevant:

“As promised please find enclosed for your perusal the estimate as best we can at this time. We have not included the lawns or the irrigation due to the fact we are still trying to ascertain requirement, final space etc.

…

We are ready to start installing trees by Thursday, Friday … All permits are currently in their relative stakeholders’ possession now and we are just waiting. Hopefully Council will not interfere or slow us down, as we will need to get extensions on the other permits if this happens.

Will Foster (The engineer) has just got out of hospital and is apparently meeting me on Thursday at the latest. We need to ensure these things can happen (Palm trees and movement over the retainer wall) before we start moving large trees around on your property.”

5. [5]
   On Thursday 18 October 2007 Mr McIvor replied by email, so far as is relevant:

“Some of the numbers are a bit scary and would like to understand break up. Is it possible to further break up into tree cost, Enviro Tech cost, and other [which includes all outlays, police, Council, machine hire etc.] … I’ll send plant list he sent yesterday although a bit long and will need to be culled which will happen on the weekend.”^[4]

6. [6]
   Reasonable inferences from the two emails are that while Mr Oaten had transport permits to allow him to start installing trees by 18 October 2007 some things needed to be done before large trees would be moved around on the property, that any estimate enclosed on Tuesday 16 October could change, that Mr McIvor by Thursday 18 October 2007 had not finalised his plant list and was intending to cull his plant list on the weekend being 20 and 21 October.

7. [7]
   Mr Oaten recalls commencing work on site on 18 October with soil works and ground works. That seems consistent with the emails and the expectation that Mr Oaten and an engineer would be on site for some preliminaries though the estimate was still vague and expensive and the plant list was not finally culled. I accept that work commenced on site on 18 October.

8. [8]
   On 20 October 2007 Mr McIvor and Mr Oaten met at Mr McIvor’s home. Mr Oaten had a spreadsheet^[5] which he tabled for discussion. Mr Oaten recalls that the spreadsheet was supplied after the exchange of emails dated 16 and 18 October. The spreadsheet was headed “Mark McIvor Estimate of works”. It was the third estimate prepared by Mr Oaten. It is the estimate referred to in the pleadings. I will call it the Estimate. They discussed it. It was for works shown for a total cost of $145,300. The total cost expressly attributed “$0.00” for “Lawn installation”, for “Irrigation installation” and in two places for “Leopard tree”. It contained some actual dollar figures which were attributed to 19 trees and 20 lillypilly trees. The figures attributed to trees were broken down into columns titled “Amount”, “Prep/AK”, “Trans cst” “Escort”, “Misc/preps”, “Installation” and “Maintenance”. It also contained figures for “Sand removal Take to saltwater our trucks Approx 60cm3 … $910.00”, “Soil purchase 125 cubic metres Inclusive delivery@ $39 per cm3 … $1875.00”, “soil installation dingo 62 man hours @ $40 per hr … $2,480”, “Excavator hirage 2 days @ 450 per day … $900” and “Compaction matting 61 sections@ per week, … $6,010”. Some of the tree varieties differed from the master plan and the numbers of trees were less. The Estimate did contemplate several large trees, seven requiring an escort for transport and 2 of those requiring police escort.

9. [9]
   Where a cost was left blank on the Estimate Mr McIvor gave evidence of the substance of their conversation that the “effect is that if something depicted zero dollars, it didn't mean it cost zero; it means that it was an unknown cost at that time, and would be determined in the future”. I accept this.

10. [10]
    Mr McIvor recalled that at the time of the meeting to discuss the Estimate some of the key plants such as the large poincianas had not been found and would take some time for Mr Oaten to locate. I assume that Mr Oaten had not purchased many plants, if any for MM at the stage of presenting the Estimate. There was no evidence that he had. There was no discussion at the meeting about whether Mr Oaten would charge the figures in the estimate, or whether the figures were Mr Oaten’s estimate of the likely cost to be charged to MM, or whether the figure in the “Amount” column adjacent each plant was the estimate of the likely cost for Mr Oaten to acquire the plants. There was evidence from each of Mr Oaten and Mr McIvor as to what they thought the Estimate meant. Counsel for each of them accepted that their opinions as to the meaning were inadmissible as an aid to interpretation. There was no mention in the discussions of whether or not MM would be charged a margin by Mr Oaten marking up costs of third party plant suppliers. Mr McIvor expected Mr Oaten to later indicate an irrigation contractor.

11. [11]
    Mr McIvor gave Mr Oaten approval to proceed. He recalls giving the approval when concluding the discussion of the Estimate. Mr Oaten recalls the approval to proceed was given later, when Mr Oaten received an establishment fee of $32,000. Resolution of that difference of opinion does not assist me in interpreting the Estimate. Mr McIvor could not recall exactly the words which were spoken. He remembered that he and Mr Oaten agreed to go forward on the basis of the Estimate. Approval to proceed is not the same as acceptance of an offer though it may be conduct from which it can be inferred that a party accepts an offer. Mr Oaten gave no evidence of a conversation to explain why receipt of $32,000 was an approval to proceed. Bearing in mind that works had commenced on 18 October, evidence of the date of approval to proceed as opposed to evidence of the date of acceptance of an offer is of little assistance in interpreting the meaning of the contents of the Estimate.

12. [12]
    Mr McIvor was not told of the existence of Timberwolf either then or at any time during the performance of the works. I find that Mr McIvor did not know that Mr Oaten was acting on behalf of Timberwolf at the time of their negotiations or during performance of the works.

13. [13]
    Some of the trees transported and installed were estimated by Mr McIvor, without objection at trial, to weigh 10 tonnes. A photograph reveals one tree to have been very large.

14. [14]
    Further works were requested by Mr McIvor during the works. Two trees installed were frangipanis which were not of the evergreen type contemplated when Mr McIvor gave approval to proceed. Mr Oaten explained that the mature evergreens were unavailable. Mr McIvor accepted the alternatives but subsequently learned things which led him to believe that mature evergreens were available. There is no evidence of Mr Oaten’s having been aware of their availability and no allegation of deceipt in respect of this.

15. [15]
    Progressively between 24 October and 20 December invoices bearing the name “Enviro Tech ABN 50 106 415 338” were delivered to MM works and were paid in full. The invoices were numbered dated and for the following amounts totalling $259,505.40:

              12567: 24/10/07 $35,200.00^[6]

              12575: 05/11/07 $29,403.00^[7]

              12586: 02/11/07 $14,157.00^[8]

              12589: 13/11/07 $11,363.00^[9]

              12595: 01/12/07 $50,699.00^[10]

              12596: 01/12/07 $33,959.20^[11]

              12597: 18/12/07 $32,491.80^[12]

              12598: 18/12/07 $13,182.40^[13]

              12599: 18/12/07 $17,160.00^[14]

              12600; 20/12/07 $21,890.00^[15]

16. [16]
    The total for invoices sent and paid significantly exceeded the figures in the Estimate.

17. [17]
    The Estimate makes no provision for houseplants. Mr Oaten was invoiced an amount of $6,675.90 by a wholesale nursery for 233 plants and delivery for a cash sale on 6 December 2007.^[16] Enviro Tech by invoice dated 18 December 2007 billed MM $10,142.00 for the purchase of houseplants “as of 15.12.07” and a further $1,735.80 for the installation of them.^[17] There was no discussion between Mr Oaten and Mr McIvor as to whether houseplants purchased for MM would be supplied at the cost paid to wholesale nurseries or whether a profit would be added.

18. [18]
    With respect to labour, the Estimate had some express and some implied labour costs. For “Misc/Preps”, “Installation” and “Maintenance” the amounts included next to each tree implied a labour component. The only express labour component in the Estimate was “Soil installation, dingo, 62 man hours at $40.00 per hr … $2,480.00”. The soil purchase amount appearing in the Estimate was 125 m³. Curiously, the statement of claim and reply were inconsistent about labour rates. The statement of claim pleaded that the terms of the Estimate included a term that:

“6.6  the Plaintiff would pay the Defendant the Defendant’s cost of preparing the Property for installation of the Materials, installing the Materials and if required, maintaining the Materials at the rate of $40.00 per man hour upon being invoiced in respect of the same by the Defendant.”

Mr Oaten’s defence alleged that the installation and maintenance costs were to be provided to the plaintiff at the following rates:

“Labour crews $40.00 per hour (plus GST).

Field officers $65.00 per hour (plus GST).

Mr Oaten $85.00 per hour (plus GST).”^[18]

MM admitted that allegation.^[19]  I note that the admitted agreement as to labour costs for installation and maintenance are inconsistent with the Estimate in that the Estimate made no express provision for such rates for labour costs for installation and maintenance.

19. [19]
    The Estimate had assumed for soil installation 62 man hours at $40.00 per hour for a total of $2,480.00. Enviro Tech invoiced MM $17,160.00 on 18 December 2007 for “Soil Installation/levelling and preps for lawn, irrigation, trees etc equal 390 man hours at $40.00 per hour $17,160.00”. It included a component of $1,560.00 for GST. Unsurprisingly, Mr McIvor required an explanation from Mr Oaten. Mr Oaten explained in evidence that the figure of $17,160.00 was correct though the description in the invoice of 390 man hours at $40.00 per hour was a false assumption by the “account’s lady”. The invoice was explained to be “in relation to additional soils, additional levelling and it was the final invoice for soil and ground works and that the hourly rates varied depending on which supervisors, staff or equipment were used. Mr Oaten explained the invoice was for the labour for installing additional soils, additional works, additional alterations, additional mulch and additional garden beds and that the works exceeded those in the Estimate. He explained that the number of hours inserted was wrong. It follows that his evidence is that the invoice was false as to the particulars set out in it. There was no documentary evidence or book of account produced to show whether the explanation given by him was accurate or inaccurate. I accept Mr Oaten’s evidence as to the extra labour and materials despite the false particulars in the invoice.

20. [20]
    Mr Oaten purportedly made on 11 or 12 November 2007 an electronic memo which reads:

“Spoke to Mark re the difference in the man hours for the site clearing, thought it would need to be doubled at least to approx 120 man hours.

Was having problems with the downpipes washing away the sand and spilling over the wall. Issues regarding having to do the works in stages as we need to drive machines through the property because he had changed where he wanted trees placed etc. He agreed to this. I told him I would keep him in the loop re the times but thought it may go up”.

Mr Oaten purportedly made another electronic memo allegedly on about 29 or 30 November 2007 which reads:

“Re the additional works for the extra digging and the additional pipes required for both the tanks, Told Mark re the additionals at this stage, said OK just bill us.”

21. [21]
    Mr Oaten explained that when he told Mr McIvor about additional works referred to in that note Mr McIvor said “that’s fine. We’ll speak about it later.”

22. [22]
    Mr McIvor does not accept that those conversations occurred. I regard it as possible that Mr McIvor had forgotten that such conversations took place. I am not persuaded that Mr Oaten concocted false memos.

23. [23]
    The Estimate had a figure in it for soil purchase at $39.00 per m² for 125 m³ inclusive of delivery. That would have been $4,875.00. Invoice 12596 shows that MM Holdings was charged for the subject site for 112 m³ of organic soil an amount of $4,847.70. Invoice 12598 reveals a charge to MM of “Final soil purchase to complete all levels $2,273.70”. It has another item “Additional soil installation and dingo hire $2,728.00”.

24. [24]
    I accept Mr Oaten’s evidence that works and washouts beyond those anticipated in the Estimate occurred and required additional soil.

25. [25]
    The Estimate referred to four Frangipani trees with each to have a total cost of, respectively, $8,630.00, $1,000.00, $4,400.00 and $4,910.00. More Frangipani trees than originally contemplated by the Estimate were installed. The total costs to which I have just referred included costs of maintenance after installation which, according to the Estimate came to a total of $2,800.00. By invoice 12597^[20] Enviro Tech invoiced MM for transplanting five Frangipanis respectively $4,840.00, $5,401.00, $3,300.00, $6,875.00 and $4,265.00. The prices and quantities were different from those in the Estimate. By invoice 12596^[21] Enviro Tech invoiced MM $9,900.00 for 20 evergreen Frangipanis including delivery. By invoice 12575^[22] Enviro Tech invoiced MM $8,630.00 for a red/black Frangipani. After 8 January 2008 Mr Oaten wrote to Mr McIvor^[23] with respect to Frangipanis and offered to adjust the price of six Frangipanis downwards by a total of $5,410.00. Those six appear to me to correspond with the Frangipanis referred to in invoices 12597 and 12575.

26. [26]
    An indication of the cost to Enviro Tech of the 20 evergreen Frangipanis the subject of the invoice 12596 appears in wholesaler’s invoices to Enviro Tech.^[24] Enviro Tech purchased four 100 litre Frangipanis for $150.00 each, twelve 100 litre Frangipanis for $325.00 each and four 200 litre Frangipanis for $385.00 each. Inclusive of GST, the 20 Frangipanis cost Enviro Tech $6,644.00. Enviro Tech, by charging $9,900.00 inclusive of GST, has marked them up by approximately 50%.

27. [27]
    Mr Oaten explained that the discount of $5,410.00 which he offered on six particular Frangipanis was to try to salvage his relationship with Mr McIvor at a time when a significant amount of money was outstanding. I accept this evidence. He did not accept that the amount which he charged was in excess of a commercially appropriate amount. He justified the mark-up by referring generally to margins, paying for staff and the cost of running a business.

28. [28]
    No other evidence was called which would allow me to make an assessment of whether the prices charged by Enviro Tech to MM for any item were or were not commercially appropriate or fair and reasonable.

29. [29]
    Three tree ferns were installed. There was no provision for tree ferns in the Estimate. Enviro Tech invoiced MM as follows:

“Purchase and delivery of three 3 MTR tree Ferns for entrance $8,800.00.

Less maintenance of Ferns minus $660.00.”^[25]

It appears that Enviro Tech was invoiced $5,159.00 for the supply and delivery to the site of the three tree ferns. I calculate that $2,981.00 more was charged by Enviro Tech than it paid for supply and delivery. The evidence of Mr Oaten about this was:

“The actual cost of installation was $1,100 for all three. Mark admitted that there was 1 m³ of soil removed done by man power. That’s 1 tonne, 1.1 tonne so in excess that’s 3.3 tonne of soil handled and man-handled by men only in a confined space. Also the weight of each one of those tree ferns is 350 kilos … it’s about 8.2 hours … $1,100.00 for the three.”^[26]

I calculate that Enviro Tech has invoiced MM $1,881.00 more than the cost of the plants and transport and the labour cost to plant them.

30. [30]
    The Estimate referred to two Poincianas for total cost respectively of $17,150.00 and $14,250.00. Enviro Tech invoiced for one Poinciana $16,320.00. Calculating the precise figure attributable to that Poinciana is difficult because the invoice refers to a Frangipani, a Poinciana and a Bauhinia which, together total $31,550.00 including GST and from which Enviro Tech deducted $2,800.00 for maintenance and $11,455.00 for establishment fee. For a second Poinciana Enviro Tech invoiced $19,220.00 less $1,350.00 for maintenance and $5,000.00 for establishment fee, being a total of $14,157.00 inclusive of GST. The Poincianas installed had not been found at the time the Estimate was discussed between Mr McIvor and Mr Oaten on 20 October 2007. The invoices are at exhibit 18.

31. [31]
    The Estimate contained an estimate for compaction matting in the sum of $6,010.00. By invoice 12575 Enviro Tech invoiced $6,010.00 for compaction matting. By invoice 12598, six weeks later, Enviro Tech invoiced for “final compaction matt hirage” $3,564.00. Mr Oaten explained that the job took longer than anticipated and that the matts cannot be hired by the day but must be hired by the week. That evidence was not disputed.

32. [32]
    At the end of the job, the relationship between Mr McIvor and Mr Oaten was affected by Mr McIvor’s concern that MM had been overcharged. He terminated the agreement for provision of services. As a consequence, three Washingtonia trees and one Leopard tree were not installed and were not maintained. Four such trees appear in the Estimate where the costs of their installation and maintenance were estimated at a total of $6,550.00. By invoice 12567 dated 24 October 2007 Enviro Tech invoiced MM $32,000.00 for establishment fee on tree transplants and $3,200.00 for GST. It seems likely that the establishment fee referred to matters including installation and possibly also some maintenance. Because the services were terminated, Mr Oaten and Mr McIvor agreed that there had been an amount of $6,649.00 which ought to be refunded. Mr Oaten wrote to confirm the agreement:

“Establishment Fee Refund: We are both in agreement to this outstanding amount of $6,649.00 this was intended to be added to the three Washingtonias and the final Leopard tree that has not gone in.”

Mr Oaten agreed in evidence that that amount was overcharged in respect of incomplete work. The terms of Mr Oaten’s note, by referring to “Refund” suggest that payment was made by MM.

33. [33]
    Among the trees installed was a Bauhinia and a Leopard. Enviro Tech invoiced $6,600.00 inclusive of GST for the Bauhinia^[27] and $8,660.00 inclusive of GST for the large Leopard tree less $3,300.00 for its establishment and maintenance.^[28] The total charged for the two trees was $11,960.00. They died. Mr Oaten explained that for most trees including Bauhinias and Leopard trees it is very unnatural to lift them out of the ground and to transplant them. A trench was dug by a third party damaging the Leopard tree. The trench was dug without prior consultation with Mr Oaten. The Leopard tree had that trench dug on two sides and as a result some large roots were damaged. The trench could have been dug further away and would have been, if Mr Oaten had been consulted by the trench digger. The termination of the agreement meant that the contemplated maintenance of installed trees did not continue.

34. [34]
    Each of the invoices sent contains an Australian business number which appears under the name “Enviro Tech”. None of the invoices explained the identity of the entity represented by the business name “Enviro Tech”. At the time the work was done, Timberwolf Industries Pty Ltd ACN 106415338 existed. The invoices referred to “ABN:50106415338”. Mr Oaten gave evidence that the Australian business number was Timberwolf’s. There was no evidence that Mr Oaten told this to Mr McIvor. Mr Oaten repeatedly claimed that Mr McIvor knew the true position without explaining how Mr McIvor learned it. I accept Mr McIvor’s evidence that he did not know he was dealing with a company.

The Proper Defendant

35. [35]
    Mr Oaten’s counsel submits that Timberwolf ought to have been the defendant because the invoices issued display the ABN of Timberwolf. He did not submit that there was any obligation or reason why MM should have searched the ABN for the identity of its owner. In Parsons & Rochella v Vance (App 7/1984 – unreported).^[29] McPherson J referred to the presumption that a person is intending to contract with the person to whom he is addressing the words of the contract and went on to say:

“The presumption is one of fact and so may be displaced by evidence of a contrary intention. Such an intention must be ascertained by an objective assessment of the words and deeds of the parties in the light of all the evidence, as well as the actual knowledge of the party seeking to enforce the promise against the individual. He cannot of course insist upon a contract with the individual if he in fact knows that the individual was acting as the representative of another, whether or not that other is a corporate entity or natural person or firm. But it lies with the person seeking to avoid that liability to show that there are circumstances, including such knowledge, sufficient to displace the prima facie inference that he is the one liable on the contract.”

36. [36]
    Mr McIvor was not shown to know that he was dealing with a company. Nothing in the prior relationship between Mr McIvor and Mr Oaten and nothing in their conversations or in the invoices ought to have revealed that Mr Oaten was a representative of Timberwolf or of an unidentified company. A company and a person was each capable at material times of having an ABN. As common as it is for persons in small business to conduct a business by incorporating a private company it is not universal in Australia.

37. [37]
    The ascertainment of the intention of the parties as to who would be the contracting parties is performed objectively. That remains the law.^[30] The opinion of Mr Oaten as to the party contracting with Mr McIvor is not relevant. I find that the agreement to supply and to perform works for reward was made between MM and Mr Oaten.

Bauhinia and leopard trees

38. [38]
    MM alleged that in breach of the agreement materials selected by the defendant were unsuitable for relocation and gave as particulars the bauhinia and leopard trees. It claims $15,260 as the cost to acquire transport and install the trees. The claim ignores the $3,300 reduction in price demanded. The actual sum paid I determine to be $11,960.00. The plaintiff has not pleaded a term of the agreement that the trees selected would be suitable for relocation. The unsuitability of the trees does not appear to be a breach of any of the six terms pleaded.^[31] Further, in respect of the leopard tree, I am not satisfied that its death was attributable to its unsuitability for relocation because of the damage done to it after relocation. Further, I am not satisfied that either tree died due to unsuitability for relocation because of the evidence that post installation, maintenance services were terminated.

39. [39]
    This claim fails for failure to prove a relevant term of the contract as to suitability for relocation and for failure to prove breach of that or any other term of a contract.

Effect of the Estimate

40. [40]
    MM pleaded^[32] and the defendant admitted^[33] that:

“The Estimate comprised an estimate of the following items:-

4.1 The actual cost of plants, soil and other items to be acquired by the Defendant for installation at the Property …; and

4.2 Transportation costs to be provided by the Defendant.”

MM submitted by its counsel that its case is not that the Estimate established a fixed price contract. It was submitted that it was “a quotation that was capable of acceptance and was accepted by the Plaintiff”.^[34] I infer that MM’s counsel intended to submit that the estimate was an offer capable of acceptance and that the offer was to charge MM in accordance with terms of the Estimate alleged in the Statement of Claim at subparagraphs 6.2, 6.4 and 6.6. By his submissions, counsel submitted that the term alleged at Statement of Claim subparagraph 6.6 was later varied to accord with the rates at defence [4(b)]. Thus, the method of charging alleged by the plaintiff to be part of the Estimate and alleged to be an offer capable of acceptance by the plaintiff was that:

• The plaintiff would pay the Defendant the cost of the Materials upon being invoiced in respect of the same by the Defendant;
• The plaintiff would pay the Defendant the Defendant’s transport costs upon being invoiced in respect of the same by the Defendant;
• The plaintiff would pay the Defendant the Defendant’s cost of preparing the property for installation of the materials installing the materials and if required, maintaining the materials at the rate of labour crews $40 per hour plus GST; field officers $65 per hour plus GST and Mr Oaten $85 per hour plus GST.

41. [41]
    In Carter, Peden and Tolhurst’s Contract Law in Australia (5^th ed 2007 p 41) an offer is defined as:

“… The indication by one person to another of his or her willingness to enter into a contract with that person on certain terms.

‘Offer’ must indicate a willingness by the offeror to be bound without further negotiation as to the terms of the proposed contract.”

The Estimate was provided before Mr McIvor had culled the plants from his plant list, before the key poinciana trees had been found, and before plants had been purchased by the defendant. The Estimate’s single rate for labour differed from the agreement for three rates for labour. The timing of the provision of the Estimate does not suggest that the parties intended that parts of the Estimate were necessarily to be binding without further negotiation. There was no relevant conversation on the day the Estimate was discussed about the meaning of the contents of the Estimate. Prior dealings show that a prior estimate was not regarded as binding. I must have regard the Estimate’s terms to determine if those terms lead objectively to an interpretation that it was an offer to be bound without further negotiation.

42. [42]
    There was no evidence of prior conversations between Mr Oaten and Mr McIvor which was relied upon by MM’s counsel to assist in resolving any possible ambiguity in the Estimate where the words “Amount” and “Trans cst” appear at the head of columns which appear to designate respectively the cost of trees to be acquired and the cost of transport.

43. [43]
    Mr McIvor was interested in the services of Mr Oaten for his particular expertise. That expertise had to do with removal from the ground of, transportation of, installation of and maintaining the life of large, mature trees. I expect that Mr McIvor was willing to agree to pay a premium for that uncommon expertise but was less willing to agree to pay a premium to Mr Oaten for the relatively more common skills for ordering plants from wholesalers or for engaging third parties to transport materials. There is no evidence that these matters were discussed between Mr McIvor and Mr Oaten. There was no conversation which expressly or impliedly suggested that by the Estimate Mr Oaten was offering to fix a price for some plants or some of his services that day while leaving to another day the fixing of a price for other plants or services or that he was offering to fix a rate at which his services were to be paid or that he was offering not to mark up prices for services provided by third parties. It is not objectively obvious from conversation or from the Estimate that Mr Oaten intended that his expertise be obtained only by the payment to him of $85 per hour for installation and maintenance or by also paying for labour of other persons at the agreed rates. The use of the word “estimate” in the Estimate does not determine that the document was not intended to contain the terms of an offer. However it is more consistent with an estimation than an offer and does aid me in interpretation. When interpreting the Estimate objectively, and without the benefit of any relevant conversations that day concerning the meaning of the Estimate’s contents I am not persuaded on the balance of probability that the Estimate was an offer of the of the three terms pleaded.

44. [44]
    I reject the implied submission that the Estimate was an offer of those three terms pleaded by MM.

45. [45]
    It follows that I reject the implied submissions that the Estimate contained three terms of a binding agreement and that the charging by Mr Oaten of a mark up on the cost of plants or materials was a breach of contract for being a breach of that agreement.

46. [46]
    There is no term of the contract alleged that Mr Oaten should not be paid for alternative trees supplied and accepted or that he should not be paid for other trees plants or services supplied which were in addition to the items in the estimate.  MM did not plead an alternative case that there was an implied term that any mark up should be fair and reasonable or in accordance with some other standard. It was submitted by counsel for MM, for example, that in respect of the supply of frangipanis “in breach of the Agreement the defendant charged in excess of what commercially was appropriate in the circumstances”. No such term was pleaded and there was no expert evidence called on this point. I am unable to determine without evidence that the extent of the mark up was more than “commercially appropriate”. As it is not in issue it is not appropriate for me to determine whether there was such a term to be implied. The existence and extent of mark up cannot be criticised in the circumstances of this trial’s issues. The extent of the mark up is not a basis for ordering repayment of it. That disposes of the claims of MM for the difference between cost and invoiced amounts or between the figures in the Estimate and invoiced amounts relating to house plants, frangipanis, lilypillys, turf, irrigation, soil, ferns, poincianas and compaction matting.

Overpayment

47. [47]
    The plaintiff alleged by its statement of claim that the defendant overcharged it with respect to the tree establishment totals in the sum of $6,649 and relied by way of particulars on an oral agreement between Mr McIvor and Mr Oaten to that effect, and the defendant’s letter undated but received by the plaintiff in January 2008. The defendant did not specifically plead to that allegation and should be taken to have admitted it. Nevertheless, it was the subject of evidence which I accept which is consistent with the allegation. In his submissions MM’s counsel relied upon that oral agreement. The defendant has made no submissions with respect to this issue or in reply to MM’s submission. There have been no submissions as to how the claim should be characterised. Arguably, it might be characterised as a claim for damages for breach of an implied term of the contract to refund overpayments though no such term was alleged. In the absence of argument I infer that the defendant concedes that the appropriate basis is the alternative plea of a claim for moneys had and received.

Conclusion

48. [48]
    I propose to order a judgment for the plaintiff against the defendant in the sum of $6,649 with interest at the rate of 10% from 31 March 2008 to today being $718 for a total of $7,367. Because this judgment is delivered on circuit away from the towns of the parties or their counsel I propose to reserve costs and to give the parties liberty to make submissions as to costs in writing by email to each other and to my Associate within 7 days.