Dadson v Lance Ryan Electrical Pty Ltd
[2014] QDC 261
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- Unreported Judgment
- Dadson v Lance Ryan Electrical Pty Ltd[2014] QDC 261
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Dadson v Lance Ryan Electrical Pty Ltd[2014] QDC 261
Dadson v Lance Ryan Electrical Pty Ltd[2014] QDC 261
DISTRICT COURT OF QUEENSLAND
CITATION: | Dadson & Anor v Lance Ryan Electrical Pty Ltd [2014] QDC 261 |
PARTIES: | CHRISTOPHER ANDREW DADSON (first appellant) and ZILZIE REAL ESTATE PTY LTD (ACN105931931) (second appellant) v LANCE RYAN ELECTRICAL PTY LTD (ACN122687272) AS TRUSTEE FOR THE RYAN FAMILY TRUST (respondent) |
FILE NO/S: | 19/2014 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Rockhampton |
DELIVERED ON: | 28 November 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 July 2014 |
JUDGE: | Reid DCJ |
ORDER: | Appeal dismissed. Second appellant to pay the respondent’s costs of and incidental to the appeal. |
CATCHWORDS: | Appeal – electrical contract – credit of witnesses – findings of magistrate – cogency of reasons – reliability of witnesses – likelihood of events – quantum meruit – implied term to pay a reasonable sum – executed consideration Ashby v Slipper [2014] FCA FC15 considered Fablo Pty Ltd v Bloore [1983] 1 Qd R 107 considered Gino D’Alessandro Constructions Pty Ltd v Powis [1987] 2 Qd R 40 considered Jones v Bradley [2003] NSWCA 81 considered Pavey & Matthews Pty Ltd (1987) 162 CLR 221 considered |
COUNSEL: | C. Tam for the appellants J. Ahlstrand for the respondent |
SOLICITORS: | Hickey Lawyers for the appellants Grant & Simpson Lawyers for the respondent |
Introduction
- [1]The second appellant was the second defendant in proceedings in the Magistrates Court at Rockhampton. Although both defendants are named in the notice of appeal as appellants, only the second defendant had any judgment against it. The claim against the named first appellant was dismissed. The respondent was however successful in its action against the second appellant (which I shall in such circumstances hereafter refer to as “the appellant”). The respondent sought damages for breach of contract or, alternatively on a quantum meruit basis for the sum of $69,805.37 together with interest. It claimed such damages pursuant to three separate agreements relating to a golf course at Zilzie which the appellant was building. The plaintiff claimed:
- $77,327.24 in relation to floodlighting of part of the golf course;
- $7,477.83 in relation to installing lights for a “chip and putt” course;
- $5,000.30 in relation to electrical work in the clubhouse and restaurant of the course;
- that only 20,000 of those sums had been paid, leaving a balance of $69,805.37.
- [2]The learned Magistrate gave judgment against the appellant for that amount, together with interest in the sum of $14,989.95 and costs.
- [3]The first named appellant, Mr Dadson, was the director of the appellant. The claim against him was, as I have said, dismissed on the basis that it was not proven that he had contracted in his personal capacity. No issue arises with respect to that on the appeal. It seems his being named as an appellant was in error. Nothing now turns on that matter.
Pleadings
- [4]At trial, the respondent relied on its amended statement of claim and the appellant on its amended defence. In the pleadings it was not disputed that Lance Ryan, the sole director of the respondent, was an appropriately qualified electrical contractor. It was also admitted that the appellant entered into an agreement with the respondent for the respondent to install floodlighting at the golf course and, subsequently to perform other work. The respondent alleged:
- that an oral quote was given to do the work for $100,000, including providing cables, but that it would be less if the applicant purchased the cable;
- that its normal charge out rate for tradesmen of $52 plus vehicle costs would be reduced to $45 per hour in respect of this initial floodlighting agreement.
- [5]The terms of the agreement were in dispute, including the amount of any quote, as was the issue as to whether the work was performed in accordance with the agreement. Indeed, the appellant alleged it performed much of the work associated with the floodlighting project itself to assist the respondent to reduce its costs. The appellant alleged in its amended defence that the respondent initially gave an estimate of only $22,000 inclusive of labour and materials, to complete the floodlighting project. The appellant also alleged:
- in or about June 2008, the plaintiff issued a statement no. 124 for $28,128.74 for the work and that the appellant paid that sum to the respondent on or about 2 June 2008;
- in or about October 2008, the respondent and appellant agreed to vary the cost of the initial floodlighting project to “the vicinity of 32 to 33 thousand dollars”.
- [6]Those matters were denied by the respondent. The respondent also alleged that after sending an invoice for $77,327.74 Lance Ryan and Christopher Dadson spoke about it. The respondent said it was agreed that payment of the invoice would be delayed until the 2009/10 financial year. His evidence about this is contained at T1-34: L38 ff. That agreement in respect of the payment of the invoice was denied by the appellant. The appellant alleged that the real situation was that Mr Dadson contacted Mr Ryan to dispute the tax invoice because it was some $44,327.74 greater than the quoted cost and that Mr Ryan said, “You should not have to pay it … I am carrying it.” That conversation was disputed by Mr Ryan.
- [7]The respondent alleged that after completing the floodlighting work, it was engaged to perform work at the chip and putt course and at the clubhouse. It alleged that, unlike the original floodlighting work, there was no agreement to discount the usual hourly charge out rate as happened with the earlier agreement. The respondent alleged such work as was required was performed and that it rendered invoices for the amounts claimed.
- [8]It alleged all invoices were “fair and reasonable for the work carried out” or “a reasonable charge for the work”. (See, for example, T1-23: L1-28; T1-25: L25 to T1-26: L7; T1-81: L40 to T1-82: L10; and T1-93: L13-18).
- [9]In its amended defence, the appellant alleges that the terms of the floodlighting agreement included that the respondent would supply all material and labour, except for lights and poles and some cable, and that it would charge out tradesmen at only $25 per work hour and would not charge for the respondent’s apprentice. It was also said to be a term that the respondent would dig the trenches and erect the light poles, and also cover cables once they had been laid.
- [10]The appellant’s pleading alleges that work progressed very slowly, that the respondent’s employees and/or contractors were not licensed to operate machinery of the nature required to complete the job and that the appellants in fact purchased a cherry picker “to assist the (respondent) to erect the light poles and install the lights”. That cherry picker, it was alleged, was damaged by the respondent’s employees filling it with petrol instead of diesel and on another occasion the respondent’s employees and/or contractors bogged it.
- [11]The appellant alleged that as a result if performed work “to assist the (respondent) and to reduce costs”. The work the appellant said it did included digging trenches, erecting some 96 light bulbs, assisting to lay cables and to pour concrete, backfilling, and attaching fittings and lights to the poles. It was alleged by the appellant that the respondent:
- dug no cables;
- erected no light bulbs;
- twice poured concrete incorrectly, damaging cable and requiring the appellant to dig up the cable and concrete and assist the respondent to relay it;
- did not refill trenches;
- mounted three lights which fell off and provided unsuitable light fittings, resulting in the appellant designing, supplying and installing heavier fittings;
- mounted only 15 lights, whereas the appellant said it mounted 80 lights.
- [12]Despite the appellant’s allegation that the respondent had estimated the cost of the completed works was only $22,000 (including all cable), the respondent, in or about June 2008, was sent an invoice by the appellant, being invoice no. 124, in the sum of $28,128.74. More surprisingly still, the appellant said it paid that invoice in full on about 2 June. Mr Ryan had said that invoice was to pay only for the cable to be used (see T1-19: L5-30).
- [13]Remarkably, especially in view of what the appellant says occurred as detailed in [11] hereof, the appellant says the parties then agreed to vary the cost of the floodlights project to “32 to 33 thousand dollars” in or about October 2008.
- [14]The applicant alleges the work performed by the respondent was defective and/or not fit for its purpose in a number of ways.
- [15]The respondent delivered its invoice for $77,327.24 on or about 14 December 2008. $20,000 of that was paid, and, as I have said Mr Ryan says he had the conversation with Mr Dadson as outlined in [6] hereof.
- [16]The respondent says that the appellant also breached of the agreements with respect to the chip and putt course and work performed in the clubhouse by not paying invoices rendered for that work.
- [17]The appellant alleged that the agreement with respect to the clubhouse and restaurant was not with it but with another company, Great Barrier Reef Golf Resorts Pty Ltd, which it is said owned and operated the complex. Mr Dadson was, it is said, also the agent of that company. There appears nothing to indicate this was made known to the appellant and it was not an issue raised on the appeal. The appellant alleged in its defence that all of the amounts claimed were not fair and reasonable because:
- the work was defective and not in accordance with the agreements;
- the agreement charge out rate was only $25 per hour for electricians and nothing for apprentices;
- the hours claimed were not worked and the materials claimed were not used to complete the subject agreement.
- [18]In such circumstances, the appellant denied the respondent was entitled to the sum claimed.
- [19]The appellant also alleged with respect to the chip and putt agreement that the lights were to be connected to a single switching point that could only be operated from the clubhouse, although they were nevertheless to be connected to an existing power supply in the irrigation shed. It was said that to utilise the switch in the shed was a safety risk.
- [20]The applicant alleged that, because of these numerous defects in the work the respondent performed, the appellant had suffered loss particularised as follows:
- $4,147 to replace three damaged floodlights;
- $7,195.54 to repair cable damage by the respondent;
- $6,490 to rewire lights to a central switching point in the clubhouse.
- [21]These sums were claimed by way of counterclaim.
Judgment
- [22]The trial was conducted over two days in August 2013, and judgment was delivered on 12 February 2014. The learned Magistrate:
- (i)found that although Mr Dadson contracted with the respondent for it to perform work, that work was for the appellant Mr Dadson was only the appellant’s agent. Consequently the claim against Mr Dadson personally was dismissed (see paras 19 and 21 of the judgment);
- (ii)said that on “both parties” version the (respondent) was using this job to try and get significant long term work on an associated housing development”, (as to this see T1-15: L20 ff where he said that was “a considerable carrot… for me to deliver them a fair and reasonable job”);
- (iii)noted that Mr Dadson answered, when asked, why he had paid $28,128, as he agreed he had, in June 2008, which was a sum in excess of what he said was the quote for $22,000 to perform the contract, had said:
“because I had agreed that he said 20 to 25, right. So 28000, right was around 25000 plus GST. And I didn’t see a problem with that. I’ve never been a mean man in any case and we was just dealing with Lance which was a friend at that time.”;
- (iv)found that in June 2008, when the invoice was delivered no actual work had then been performed by the respondent on the site and that the invoice for $28,000 was for the cost of cable required from Olex Cables for some $25,806.78 plus GST (curiously a total of $28,387.45, slightly more than the invoiced sum). This was of course consistent with Mr Ryan’s evidence referred to in [12] hereof. His Honour referred to the fact that when the fact that no work had then been performed was pointed out to Mr Dadson, he said, “I just pay things, you know, like I was asked to pay that and I just paid it”;
- (v)found the respondent’s invoice for $77,372.74 was issued to “Zilzie Bay Real Estate” on 14 December 2008;
- (vi)found the appellant paid the initial invoice of $28,128 on 18 June 2008, and then later paid a subsequent sum of $20,000;
- (vii)found the appellant’s payment of these two sums was “inconsistent” with his evidence that the contract was for a fixed sum, originally $22,000 and then no more than $33,000;
- (viii)found the explanation of Mr Dadson as to why the respondent would perform all of the work at a loss (because the hourly rate that Mr Dadson says the respondent agreed to was less than the rate of $30 per hour he said he was paying tradesmen) was implausible. He said it was not supported by the evidence, in circumstances where no satisfactory evidence of the real likelihood of further housing work becoming available had been given, to paraphrase the Magistrate’s findings at paras 35 and 36 of the judgment. I note, by consent, Mr Ryan’s evidence that I have referred to at [12] hereof;
- (ix)referred to the evidence of a Mrs McLennan, a designer and estimator who did work for Mr Dadson. Although she was not present when the discussions about the agreements were conducted, she said the respondent was engaged by her to do work on three houses, presumably being built by the appellant or another of Mr Dadson’s companies, because “she was told to do so by Mr Dadson because he told her he owed $70,000 to Mr Ryan for the lights for the clubhouse”. She thought this conversation was in about July 2009. The learned Magistrate found this evidence was “consistent with the (respondent’s) version” (see paras 38 to 40 in the judgment);
- (x)found the appellant’s in paying both the $28,128 and the subsequent $20,000, significantly more than the total sum Mr Dadson says he had agreed to pay, was “more consistent with the version of the (respondent)”;
- (xi)said that a former employee of the appellant, Mr Smith, was present when Mr Dadson phoned Mr Ryan after receiving the invoice for $77,327.74. Mr Smith said in giving his evidence that the phone was put onto speaker mode. The magistrate said when Mr Dadson ‘challenged the amount of the invoice that Mr Ryan, placated Mr Dadson by saying ‘I’m carrying it.’” The learned Magistrate found this was “consistent with the (respondent’s) version of what was agreed”. This is clearly a reference to the fact, as I earlier stated, that the respondent’s case was that after sending that invoice for $77,327.44 Mr Ryan agreed that payment of the invoice would be delayed until the 2009/10 financial year. It was in that sense that Mr Ryan said he was “carrying it”;
- (xii)referred to the explanation Mr Dadson gave of his understanding of the fact that the respondent would “carry” the invoice. Mr Dadson said in his evidence, in a passage referred to by the learned Magistrate that “we thought it was some sort of tax lurk … that he was going to claim tax for a non-payment or … I don’t … I couldn’t work that out”;
- [23]In such circumstances the learned Magistrate unsurprisingly found the respondent’s version more probable than the appellant’s. In doing so he particularly referred to:
- (a)the applicant’s having paid $48,128, considerably more than what it alleged was the agreed price;
- (b)Mr McLennan’s evidence that Mr Dadson used the appellant for work on some houses, as he owed $70,000 for “lights for the golf course”;
- (c)a statement of Mr Dadson that he thought he had paid for work under the club house agreement when he paid the $20,000 (which appears implausible as this work was performed after the initial invoice for $77,327.24 had been sent).
- (d)the inherent implausibility the plaintiff would charge out his staff at less than he paid them;
- (e)the implausible explanation of Mr Dadson that he believed the respondent issued the invoice for $77,327.44 “as a tax lurk”.
- [24]Each of those factors are compelling and there seems little reason to doubt the Magistrate’s acceptance of them as justifying his finding that the respondent’s case was more probable than the appellants.
- [25]In such circumstances the learned Magistrate, consistently with his understanding of the evidence of Mr Ryan, found:
- there were three separate agreements;
- the golf course agreement was for a quoted price of $100,000 (I shall refer to this issue later);
- no separate quote was given for the chip and putt agreement or for the club house agreement;
- those two agreements did not involve any reduction in the respondent’s charge out rate such as applied with respect to the golf course agreement;
- that some relatively minor differences between the respondent’s invoices to the applicant and invoices to the respondent from its suppliers are explained by mark-ups and some differences in the precise use of goods, and also possibly by the respondent’s use of old prices entered into its computer, but that the content of the invoices was not “called into question”. The learned Magistrate accepted there were such discrepancies, but said he found this “unsurprising” and accepted Mr Ryan’s evidence concerning material invoiced;
- that evidence called by the appellant as to alleged inaccuracies in the respondent’s worksheets was vague and, I infer, of very limited worth.
- [26]The Magistrate also accepted the evidence of Mr Preston, an electrician who was primarily responsible for carrying out work for the respondent at the golf course, as to the accuracy of the information contained in the worksheets which set out labour utilised by the respondent. Mr Preston had said in evidence that they were normally filled out daily.
- [27]The learned Magistrate then turned to the applicant’s counterclaim. He noted invoices of Jeff Bleney, an electrician, but noted these were dated 14 and 29 July 2011. Some two to two and a-half years after the respondent had completed its work in late 2008 and early 2009. In circumstances where Mr Preston, whose evidence he accepted, said that “at handover he believed that all the lights worked”, the learned Magistrate found that there was no direct connection between the alleged faults that Mr Bleney repaired and the respondent’s work upon completion of the contract. Any prior faults had, the learned Magistrate found, been corrected and repaired it (see T1-16: L23ff). Mr Preston said they found a faulty cable when the job was tested on completion. I note also the evidence of Mr Ryan (T1-34: L38 ff) that at no time did Mr Dadson on behalf of the appellant raise objection to the work the respondent had done.
- [28]The Magistrate also accepted the evidence of Mr Preston as to the use of the existing switchboards in the pump house and of the switching used to activate the floodlights. He noted that although the applicant sought to suggest use of the pump house was a safety risk, no qualified person gave such evidence. Instead the appellant sought to rely on the evidence of Mr Dadson’s son. The Magistrate found “it more likely than not that there was no specific agreement as to where the lights would be controlled from.”
- [29]In such circumstances, the counterclaim was rejected.
- [30]The learned Magistrate lastly referred to the fact that the respondent’s claim was in contract and alternatively on a quantum meruit in the same amount. He found:
- the respondent did work for the appellant;
- the appellant had requested such work;
- he accepted the evidence of Mr Ryan and Mr Preston on the materials provided and later supplied and rejected the appellant’s counterclaim;
- that in the circumstances, alternative to its contractual claim, the respondent was entitled to succeed on a quantum meruit.
Appeal
- [31]The appellant’s grounds of appeal are that the learned Magistrate:
- 1.took a wrong approach to the evidence and to fact finding in that he:
- (a)did not give any proper regard to the standard of proof required in civil proceedings;
- (b)did not have proper regard to significant conflicting and contradictory evidence;
- (c)unduly rejected unchallenged evidence;
- (d)unreasonably rejected evidence
- (e)drew inferences which were unreasonable, uncertain or not reasonably open;
- 2.erred in law in allowing the quantum meruit claim where the respondent “did not elect to terminate a valid enforceable and subsisting contract”, or, alternatively;
- 3.did not have any proper regard to evidence of defective work and delay in allowing and quantifying the claim for quantum meruit;
- 4.gave inadequate reasons;
- 5.did not have any proper regard to the evidence.
- [32]Both parties provided extensive written and oral submissions.
- [33]In support of the first ground, the appellant’s counsel submitted that the Magistrate arrived at the conclusion that the respondent’s version was “more probable” than the appellant’s (para 42 of the judgment) erroneously and in a way that was “unclear on the face of his judgment”. He submitted the magistrate in effect “chose between guesses” so that his findings were not “definite and reasonable”. He submitted the learned Magistrate “simply made a choice between conflicting inferences and by that process he engaged in conjecture”. (See [19] and [24] of the appellant’s written submissions).
- [34]I have earlier set out the judgment and the reasons of the learned Magistrate in quite significant detail because, in my view, they clearly indicate why I do not accept those submissions. In my view the Magistrate gave careful, detailed and cogent reasons as to why he accepted the evidence of Mr Ryan and Mr Preston and correspondingly gave careful and detailed reasons why he did not accept the evidence of Mr Dadson. It is perhaps unfortunate that in paragraph 42 of the judgment he said, “On balance I find the (respondent’s) version of what was agreed more probable than the (appellant’s) version.” That might be thought by some to suggest that his finding was a finely balanced exercise, perhaps giving tacit support to the applicant’s counsel’s submission that he “chose between guesses”. A careful reading of the whole of the judgment however suggests to me that in fact his findings were not finely balanced and were in fact strongly made after careful examination of the evidence and of the likelihood of each of the two parties’ versions.
- [35]The appellant’s counsel challenged a number of factual findings made by the magistrate, namely:
“(a)that it was inherently implausible that Mr Ryan charged his staff out at rates less than he paid them.
- (b)that Mr Dadson’s explanation for paying $48,129 was ‘inconsistent’ with the contract being ‘one agreement’ for a ‘fixed sum’ and was ‘considerably more’ than Mr Dadson said the ‘agreed price was’.
- (c)that Mr Ryan’s statement that he was ‘carrying’ the invoice for $77,327.74 was ‘consistent’ with Mr Ryan’s version of ‘what was agreed’.
- (d)that he accepted Mr Ryan’s explanation of the ‘material invoiced’.
- (e)that he accepted Mr Preston’s explanation of how the worksheets were produced.”
- [36]In respect of the first of these challenges, the appellant relies on the suggestion the respondent may have so charged his staff in order to win further work I have referred already to Mr Ryan’s evidence about this at T-15 of the transcript. . The learned Magistrate’s reference to the tenuous possibility of such further work (he said no evidence was given by Mr Dadson that he or the appellant were in fact intending to build those houses) but said there was “some agreement that the possibility of the ongoing electrical work was a factor”.
- [37]In my view, in circumstances where Mr Dadson’s evidence was not accepted for a significant number of other reasons also, he was entitled to find such a suggestion “inherently implausible”. It is noted also that this suggestion was not agreed to by Mr Ryan. Furthermore, Mr Ryan said only that it was a “carrot” to charge a “fair and reasonable job”. He did not say it was a sufficient carrot to him to consciously loose money on this not insignificant job and I agree that such a suggestion was “inherently implausible”.
- [38]In considering the second of the challenged factual challenges, it is also important to understand that the learned Magistrate’s finding that paying $48,128 was “more consistent with the version of the plaintiff” and that it was “inconsistent with (Mr Dadson’s) evidence the contract for all the work done was for a fixed sum” (to use the words in para 34 of the judgment) were findings in circumstances where the allegedly fixed sum contract was for “originally $22,000 but in any event no more than $33,000”, a significantly more limited sum than the amount in fact paid. It is because the sum actually paid was so far in excess of the sum Mr Dadson says was agreed that the learned Magistrate made the finding he did, that the payment was inconsistent with the alleged agreement.
- [39]There can be no criticism of his doing so. Indeed, having read the material such a conclusion was almost inevitable. The explanation offered by Mr Dadson bordered on fanciful.
- [40]So too the criticism of the learned Magistrate’s finding that “the statement by Mr Ryan that he was carrying the invoice in the sum of $77,327.74 is consistent with the (respondent’s) version of what was agreed” is unfounded. Mr Ryan’s evidence (at T1-34: L38 ff) was that after he had sent the invoice for $77,327.74 to the defendant he was contacted by Mr Dadson who he said could not then pay it. Mr Ryan agreed to defer payment until the appellant could pay it in the 2009/10 year. Mr Dadson accepted Mr Ryan had said he would “carry it” but, as the Magistrate found, his explanation that he thought it did not need to be paid and that it was issued as some sort of tax lurk was entirely implausible. I note also that Mr Ryan gave evidence that Mr Dadson in fact said the invoice was “fair and reasonable for the amount of work you’ve done”.
- [41]Those matters, together with the learned Magistrate’s appropriate reliance on other matters set out earlier in these reasons and largely but not fully gathered together in paragraph 42 of the judgment clearly justified the Magistrate’s in rejecting the evidence of Mr Dadson and accepting that of Mr Ryan.
- [42]So too was he justified in accepting the evidence of Mr Preston that worksheets were completed, usually on the day such work was performed. Such credit findings also informed the Magistrate’s decision in accepting the evidence of Mr Preston and Mr Ryan as to the materials used. The Magistrate’s approach to that issue, accepting that there were some inaccuracies in precise quantities and/or prices but finding the invoices were generally an accurate reflection of the work done and materials supplied was entirely understandable.
- [43]I cannot accept the appellant’s counsel’s submission that the observations of Mansfield and Gilmour JJ in Ashby v Slipper [2014] FCA FC15 at [62] that inferences should be “affirmative conclusions from circumstances otherwise proved in evidence” supports the applicant’s case that the contract price for the works was $33,000 which has been discharged by payment in fact of $48,128.74) and that the work was defective. Rather, such an approach in my view underscores the findings the Magistrate did in fact make.
- [44]The submission that the Magistrate’s approach to fact finding was wrong and unsupported by the evidence is untenable. I conclude rather that the applicant version of events was properly rejected by the Magistrate for valid and cogent reasons set out in the judgment.
- [45]I might add that in his submissions counsel for the applicant does not address the Magistrate’s reliance on the evidence of Ms McLellan that she used Mr Ryan to do electrical work on houses she was designing for the defendant (or perhaps one of Mr Dadson’s associated companies) because, she said, Mr Dadson had told her to use Mr Ryan because he owed Mr Ryan $70,000 for lights for the golf course. That seems to have been a significant factor relied on by the Magistrate. That he did so is not surprising. That it was not referred to in the applicant’s written submissions is perhaps also not surprising. It is difficult to imagine how acceptance of that evidence could not be seen to be almost entirely undermining of the credibility of Mr Dadson and so also undermining of what the applicant’s counsel described as “the three pillars” of the appellant’s case namely:
- that the contract price for all the works was $33,000;
- the applicant paid Mr Ryan about $48,000 for the contract works; and
- Mr Ryan’s work was defective and was not rectified.
- [46]In my view her evidence, properly accepted by the Magistrate, is entirely inconsistent with those pillars. I note too, it is generally consistent with the evidence of MR Ryan (of T-34) I referred to earlier that Mr Dadson thought the invoice fair and reasonable.
- [47]I turn to ground four of the notice of appeal – namely that the Magistrate’s reasons were inadequate – because it is clearly related to the first ground.
- [48]For the reasons I have already set out it seems to me the learned Magistrate has very adequately exposed his reasons for resolving the matter as he did. He adequately explained why he accepted the evidence of Mr Ryan, Mr Preston and Ms McLellan and, correspondingly, why he rejected the evidence called in the appellant’s case. There was a strong body of evidence on which he relied in coming to the conclusions he did. There can be no proper basis for the appellant feeling any injustice at the decision. The magistrate did not, as I have said, rely on “bald conclusionary statements” (to adopt the words of Santos JA in Jones v Bradley [2003] NSWCA 81 at para [64]). His Honour gave a very considered analysis of the competing evidence and adequately explained his reasons for accepting the respondent’s case and rejecting that of the appellant. I have sought to demonstrate that in my analysis of the judgment and my remarks about the first ground of appeal.
- [49]In such circumstances I conclude there is no force in the submission that the reasons were inadequate.
- [50]The remaining grounds concern the appellant’s submission about the quantum meruit claim. In order to consider these grounds it is in my view necessary to first consider a matter that emerged only during the hearing of the appeal. I have said that the learned Magistrate accepted that Mr Ryan on behalf of the respondent and Mr Dadson on behalf of the appellant came to an agreement for the plaintiff to perform floodlighting work on the basis of a “quote of $100,000”. This was the basis on which the respondent’s claim in contract was formulated in the pleadings. It was pleaded that the quote “was for $100,000 (including cable) which would be less if (Mr Dadson) purchased the cable”. In fact, as I have set out, the appellant paid $28,128 in June 2008 before work had begun to purchase at least some of the cable.
- [51]The appellant was said to have accepted the quote so that the parties formed a contract. The appellant disputed the quote of $100,000 but said there was an agreement the work was to be completed for $22,000, later increased to $32-$33,000, and this was to include the cost of cable (see para 3(b)(iii) and 7 of the appellant’s amended defence). When I asked counsel for the respondent to take me to the evidence of Mr Ryan as to the agreement he referred me to T1-12 L 25. There however Mr Ryan said;
“I indicated to Chris (Dadson) just verbally… just on the rough with my experience that typically a job like such would be in and around… between $100,000 and $150,000 so to speak.”
- [52]It does not seem to me that Mr Ryan at any time gave evidence of a binding agreement that the appellant would pay $100,000 for the initial flood light contract. That was however the basis on which the judgment proceeded. It appears to me that the learned Magistrate was in error in so concluding. I suspect that this error can be explained because both parties accepted that there was a contract between them but the respondent alleged, as I have said, that the agreed price was much less – initially $22,000 and then increased to $32-33,000.
- [53]Because of the respondent’s alternative claim that it was entitled to recover the reasonable costs of work on a quantum meruit the learned Magistrate did however, turn his mind to the question of the reasonableness of the invoice and the value of the work provided by the respondent. At paragraph 44 and following of the judgment the learned Magistrate considered the invoices and work order sheets which the respondent produced and which became exhibits at the trial. I have referred to many of his findings about that already.
- [54]His Honour accepted the evidence, as I have said, of Mr Ryan concerning material invoices and that of Mr Preston concerning the daily work sheets which evidenced the labour utilised in carrying out the jobs. He accepted the work was provided at the appellant’s request. In circumstances where he “accepted the evidence of Mr Ryan and Mr Preston on the materials provided and the labour supplied and rejected the (appellant’s) counterclaim which in part at least goes to a claim that he work was defective” he found for the plaintiff on the alternative claim for a quantum meruit also.
- [55]The appellant’s counsel submitted:
- that there was no or no sufficient evidence that the reasonable cost of the work, after allowing for $48,128 already paid, was $69,805.37; and
- in any case there was no evidence that the contract was discharged so the respondent was thus not entitled to sue on a quantum meruit, there being a valid contract.
- [56]This latter argument can I think be readily disposed of. Claims in quantum meruit, including in respect to building contracts, have been said to arise only if any contract between the parties has been discharged or is otherwise unenforceable. Such matters were discussed in Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 and, prior to that, in Fablo Pty Ltd v Bloore [1983] 1 Qd R 107 and Gino D’Alessandro Constructions Pty Ltd v Powis [1987] 2 Qd R 40. That latter decision, was consistent with the earlier judgment (also written by McPherson J) was specifically approved by the High Court in Pavey & Matthews Pty Ltd v Paul (supra). Whilst it can be accepted a party cannot sue on a quantum meruit if there is a valid contract, I think the learned Magistrate was referring, in allowing the respondent’s alternative claim, to the ability of a party to recover in debt upon an executed consideration – such of might arise where work had been completed – independent of the oral contract.
- [57]An alternative, and perhaps better, approach where there was no specific agreement as to price (as I conclude was the case here) but was told a mere estimate that the work would cost between $100,000 to $150,000, that there was an implied term that the respondent would be entitled to be paid a reasonable sum for the work performed. In either case – whether recovering a reasonable sum as an implied term of the contract or recovering a reasonable sum as a debt due upon an executed consideration in circumstances where there was no specific agreement as to price, the issue was the same; what was the reasonable cost of the work which the respondent performed?
- [58]Issues of the reasonable cost of the respondent’s work were significantly addressed in the evidence. They were summarised in the respondent’s counsel’s witness submission on the appeal. The Magistrate accepted, consistently with the evidence called in the respondent’s case that in regard to the flood lighting agreement the agreed charge out rate by tradesman was $45.00 per hour but on the two subsequent agreements was $52.00 per hour.
- [59]Furthermore the evidence of Mr Ryan and Mr Preston, accepted by the Magistrate, was that:
- (a)the respondent and its employees were not responsible for any delays (see T1-14 L 20);
- (b)the appellant made no complaints to the respondent or its employees about any defects with respect to any of the three agreements (T1-15 L 35/40 and T1-34 L1 ff) and on testing lights were operational (T1-34 L 5-15);
- (c)the respondent paid electricians $30 per hours and apprentices between $15 and $17 per hour (T1-14 L 30-40);
- (d)the respondent applied an 11% mark up on the cost of cabling (T1-20 L1-15);
- (e)work orders relating to the flood lighting agreement indicated a total of 1052 hours of work had been performed, but only 870 hours were charged to the applicant (T1-20 L 35 – T1-25 L 20, L 5/45 and Exhibit 3);
- (f)the material invoices (Exhibit 4) supported materials charged on tax invoice 156 which was Exhibit 8 at the trial (T1-28 L 1 – T1-32 L 20);
- (g)similarly work orders (Exhibit 5) relating to the chip and putt agreement (T1-35 L 25 – T1-37 L 30) and the club house agreement (T1-39 L45 – T1-42 L 10) supported the charged amounts. Indeed with respect to the club house agreement, such work orders showed 104 hours completed work, but only 30 hours were charged;
- (h)material invoices (Exhibit 6 and 8 respectively) for those contracts together with the work orders support tax invoices for $7,077.83 (Exhibit 12) and $5,030.30 (Exhibit 13, for those two subsequent agreements).
- [60]That evidence must also be seen against the evidence of Mr Ryan that Mr Dadson said the invoice of $77,327.74 was “fair and reasonable” and that of Ms McLellan that I have referred to already. She said Mr Dadson acknowledged to her that he owed the respondent “$70,000 for the lights for the golf course”. (T1-96: L 40). This evidence was accepted by the learned Magistrate, as he was entitled to do. Her cross-examination involved no more than suggesting that Mr Dadson at no time said that to her. There was not any suggestion as to why she might be mistaken or what may have motivated her to lie if she was doing so. She gave some particularity in her evidence. For example, she said she would have preferred to use another company Kepellec, whom she had used previously. Not to have accepted her evidence, which very severely undermined the appellant’s case, might be said to have been perverse. It is hardly surprising the Magistrate relied on it.
- [61]Against the background that the learned Magistrate accepted the evidence of Mr Ryan and Mr Preston and rejected the evidence of Mr Dadson, which appeared to be strongly inconsistent with a number of uncontradicted facts, it might be said that her evidence gave very strong support not only to the Magistrate’s conclusions about credit, but also strongly supported his finding that the sum of $69,805.37 was recoverable as a reasonable sum for the work performed. Mr Dadson’s statement to her, which she recounted to the court, can be seen as an admission by him that the appellant owed such a sum to the respondent.
- [62]In such circumstances, I find that there is no substance to the appellant’s grounds of appeal and the appeal is dismissed.