CITATION:	Walker v Mon [2015] QCAT 404	

PARTIES:	Bradley Walker
(Applicant)	
	v	
	Alex Mon 
(Respondent)	

APPLICATION NUMBER:	BDL297-14	

MATTER TYPE:	Building matters
	
HEARING DATE:	18 September 2015	

HEARD AT:	Southport	

DECISION OF:	Member McDonald	

DELIVERED ON:	19 October 2015	

DELIVERED AT:	Southport	

ORDERS MADE:	1.	That Alex Mon pay Bradley Walker the sum of $3,641 forthwith. 	

CATCHWORDS:	Building matters - termination of contract, monies outstanding - allegations of poor workmanship	

APPEARANCES:

APPLICANT:	Bradley Walker 	

RESPONDENT:	Alex Mon 	

REASONS FOR DECISION

[1]	Mr Walker contends that Mr Mon owes him $5,605 under his invoice 0141 of 24 November 2015 for works performed under an agreement between the parties for the excavation of footing; fence post holes stand poles boxing, concrete supply and pump. He contends that a verbal agreement between he parties was evidenced in writing by job price agreed at $12,586 including GST. Mr Mon never completed works under the agreement because he was denied access to the premises by Mr Mon. He claims for works completed in a sum of $5605. He admits payment of $1586 has been made since the application was made. 
[2]	Mr Mon objects to payment, arguing that the agreement was terminated and the work performed demonstrated poor workmanship he further argued that the driveway site was prepared by other contractors, and the works that were performed by Mr Walker were faulty and cost him in rectification. He considered he had paid him what was owed in the sum of $1586.
[3]	 A handwritten note signed by the parties states the parties agreed to costs of: 
$11,000, including all concrete of both driveways 
+ 13 wall footings, 8 deck holes at 20 each=140; 13 retaining holes at 35=368
7 bottom deck at 20= 140
13 fence posts @35= $468= 1586
[4]	The note indicated that the driveways were agreed at an amount of $11,000. Mr Walker claimed that the related holes were underpriced because the agreement to do the driveway was a larger job, so he quoted a lower amount for this ancillary work. 
[5]	I accept evidence that work commenced on 20 November 2014. Mr Walker said on 20 November 0215 and 21 November 2014 the driveway was prepared and cut in prior to the concreting of the driveway as contemplated by the agreement between the parties. Holes were also augured. He indicated that more holes than were requested, and he had therefore claimed payment for these.
[6]	Invoice 79 from Bulle Earthworks dated 20 November 2014 indicates that work to shape the driveway, move crusher dust and auger holes and move wast were performed on this date. In an unsworn statement of Daniel Boulenaz of 29 November 201, Mr Boulenaz, the earthworker who undertook preparation of the driveway, described a lengthy and difficult job with several changes requested on the day by Mr Mon which delayed completion. The invoice indicates that some 9 hours were expended and 23 holes augured at a cost of $891.It is noted that direction was taken from Mr Walker’s staff and Mr Mon and holes were drilled under direction of both. 
[7]	On 21 November 2014 post hole digger work was hired from Kennards for 4 hours at a cost of $85. The invoice to Mr Walker of 21 November 2014 indicates it was hired at 11:07 am and returned at 13.34pm. On that day, invoice records of Q-crete Premix Pty Ltd note that 3.6 cubic metres of concrete was pumped to the site at a cost of $641 including waiting time.  Mr Mon accepts that driveway curbs were cut and the concrete remnants left behind on that date.  
[8]	GNH Concrete Pumping has invoiced Mr Walker for $605 being the GST inclusive rate for concrete pump supply to the site on 21 November 2014.  
[9]	Mr Mon claims on 23 November, (the Sunday) he called Mr Walker to advise him that the driveways were not going to be concreted but paved. Concreting work ceased thereafter. On 24 November 2014 Mr Mon sent an email to Mr Walker stating that the stop at least initially was temporary on the basis that concrete was not going to be placed on the driveways. He went on to say “our contract may still be validated depending on a number of issues outside my power“. The sentence was bolded for emphasis. 
[10]	However, in his written submissions to the Tribunal he indicated that at the end of 21 November 2015, he was” very unhappy about the mess and errors the applicant had made. Posts were in the wrong location and all the council land was covered in concrete which he did not clean up.” It is important to note that the original basis for termination was identified as a change of material for the driveway. It was not until 27 November 2014 that concerns about quality were raised. 
[11]	Mr Mon claimed in email of 27 November 2014 that half of the work performed has to be repaired at his cost, noting the retaining wall failed inspection and needed to be redone. He accepted that curb had been cut and would get a market price and pay him for that. At hearing he claimed that men of the many of the 41 holes were not done properly. He said there were too many holes made without concept of depth necessary and this required rectification.  In a subsequent building undated quote for other building work from Designmaster Constructions, he was quoted to remedy to pads that had been missed previously. This cannot be relied upon as there is no date to indicate whether these relate to the work of Mr Walker. 
[12]	Mr Mon’s email of 28 November 2014 refers his presence on the site at the time being “looking and assessing the quality of the job which lead to numerous arguments and was disappointing leading to the removal of the second stage of the agreement”. Mr Mon also gave evidence under oath that one of the reasons he terminated the agreement was his discomfort with what he perceived as a prying and aggressive nature of Mr Walker because he did not want people like that on his property asking so many questions. In light of these two admissions it is open to the Tribunal to conclude that he terminated the agreement based upon high conflict relations between the parties without regard for the obligations under the contract. It is apparent that Mr Mon has given different reasons for bringing the agreement to an end before the concrete pour.  
[13]	Mr Mon did not accept that Mr Walker has undertaken preparation of the driveway. 
[14]	He provided evidence that A1 Concreting prepared and concreted the driveways on 19 December 2014 at a cost of $9788.10.The invoice is markedly reduced from Mr Walker’s quote of $11,000 plus holes. It is noted that Mr Mon spoke to a number of prospective concreters and Mr Walker was the selected as the best quote. This marled reduction in price would suggest that some preparatory work had in fact been done for which A1 Concreting were unable to charge. It is most likely that this preparation was performed by Mr Walker. 
[15]	Mr Mon claimed that he had losses arising from the work performed by Mr Walker. Specifically he claimed that that the fence posts were not in a line and the retaining wall was in danger as a result of the holes drilled. He claimed in his submission that he had to pay carpenters for delay of the unaligned posts, but provides no evidence of these costs to support this statement. There is no independent evidence before the Tribunal to support that conclusion. 
[16]	Mr Mon presented photographs to the Tribunal which he argued demonstrated poor workmanship. The photographs are undated. Mr Mon acknowledged that some were taken days after the applicant left the premises, and others were taken well after. Mr Mon submits that the photos demonstrates that positioning of sleepers were incorrect which may have caused the retaining walls to collapse. He stated that he had been told this by an engineer; however no evidence of such a conversation was presented to the Tribunal. No report or letter form an engineer was submitted to the Tribunal. 
[17]	Mr Mon stated the photos showed that the top of the retaining wall was not level. Mr Walker denied this claiming they were level at the base where they needed to be, and a stable structure has since been built upon it as evident in the photos. 
[18]	Mr Mon stated that the photos show that Mr Walker left the site untidy, leaving lumps of concrete behind which dissatisfied him. 
[19]	Mr Mon’s oral and written submissions  has noted frequent reference to the “mess” on the site  as a contributing factor in termination of the agreement. Mr Mon presented photographs that he claimed proved that the work was poorly performed. He argues they photograph 1 shows that posts were not straight. He claimed photo 2 demonstrated that at the top of the retaining wall posts were is not straight. He said he took photos because he was concerned about the quality of the work. Photographs he claims shows dumps of concrete waste left over the weekend. Mr Mon was aggrieved by this because he considered it had made the area untidy. 
[20]	Mr Walker accepted the photos demonstrated rubble, but had argued the job was in progress and the plan was  to return on Monday under the agreement and rubble would be removed as part of the general job cleanup had he been able to continue work as planned. 
[21]	There is insufficient evidence before the tribunal to suggest poor workmanship. The Tribunal cannot conclude that the photos demonstrate poor workmanship where the job was incomplete.  An unsworn statement of a third party who did not attend to give witness at the hearing is to give evidence is insufficient evidence to support Mr Mon’s claim that the driveway needed substantial adjustment and rectification following Mr Walker’s involvement. 
[22]	Mr Mon argued that he had evidence that the preparation was performed by another contractor and presented an email from Coast 2 Coast Earthmoving in support of this. Mr Walker objected that this was not for preparation of the driveway. Indeed the email indicates the works were for cleaning; fence holes rubbish removals placing rocks and backfilling on 30 October 2014 and 31 October 2014. This cannot be relied upon as evidence that another contractor prepared the site. Cleaning does not constitute the earthworks that took 9 hours on 20 November 2014. 
[23]	The tribunal finds that the applicant did undertake works including excavation of footing; fence post holes stand poles boxing, concrete supply and pump as part of the terms of the agreement of the partially completed contract to concrete the driveways and drill the identified holes. The Tribunal does not accept that there is sufficient evidence before it to find that work has not been performed with reasonable care and skill. Mr Walker’s services were terminated prior to completion of the contract. The evidence suggests that he has performed all drilling work requested, and also prepared the driveway for concreting. That he was unable to fully complete the concreting of the driveway due to early termination of the agreement does not mean that he should not be compensated for the work performed. Evidence of the invoices relating to Mr Walker’s outlays for works performed on 21 November 2014 is clear evidence that work was performed in excess of hole drilling. Accordingly he should be appropriately compensated. 
[24]	The pricing in invoice of 24 November 2014 differs from the agreement between the parties identified in the handwritten note signed by the parties. It has been issued after the termination of the agreement at a time of conflict between the parties. Mr Walker stated that the process are different because the original quote was dependent on a concreting job which no longer existed, and therefore he had given cheaper rates in the quote, and these no longer applied. However, in seeking to rely on the agreement he cannot amend the process at his whim. The invoice charges 14 block wall footings at $35 per hole. Mr Walker contends that there were multiple requests for further holes and therefore 14 of these were drilled. There is no evidence of an amendment to the terms of the agreement, and therefore payment for 13 of these retaining wall holes is required. 14 fence post holes were invoiced at a cost of $35 per hole, but the agreement specified 13 of these. There is no evidence of amendment of this term. 7 deck holes and 8 post holes for deck were invoiced at $35 but the original agreement provided for these at a rate of $20 each. Accordingly he is owed that amount agreed. There is evidence of excavation at a cost of $891. In oral evidence Mr Walker advised that his staff were paid $350 per day to work for him. Given Mr Walker or his staff had to be on site for 9 hours which in excess of a normal working day, his claim of $1350 is reasonable. Mr Walker has charged for site set out and formwork and there is evidence that this was performed and should be granted in full. He further invoices for a concrete pump in the sum of $550 was outlaid. Mr Mon objects to this payment saying it was not part of the initial quote, nor of the amounts sought on 21 November 2015. He said he was not supposed to use a pump but due to his miscalculation realised afterwards that a pump would be necessary. 
[25]	The tribunal finds that there were no express terms in the agreement between the parties about the hire of a concrete pump. However, in order to perform the agreement for the correct amount it became necessary and formed part of the overall quote for the two driveways. As the preliminary works were commenced in preparation for pouring, this outlay should be met. 
[26]	The Tribunal determines that Mr Mon owed Mr Walker $1586 for hole drilling plus site set out $2200, concrete pump hire $550, and earthmoving costs of $891. Mr Mon has already paid $1586 and this is offset from the balance. Mr Mon must pay Mr Walker the sum of $3641 forthwith.