VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST		VCAT REFERENCE NO. C5928/2018
CATCHWORDS	
Uncertainty as to contract terms, prevention and intervention by applicant in relation to remedial works; decision on the facts. 	

APPLICANT	328 Hampshire Road Pty Ltd (ACN: 603 171 473)	
RESPONDENT	Sign Decision Pty Ltd (ACN: 098 292 847)	
WHERE HELD	Melbourne	
BEFORE	Member D. Galvin	
HEARING TYPE	Hearing	
DATE OF HEARING	29 November 2018, 16 April 2019, 8 August 2019, 23 October 2019	
DATE OF WRITTEN SUBMISSIONS	20 November 2019	
DATE OF ORDER	2 April 2020	
date of written reasons	2 April 2020	
CITATION	328 Hampshire Road Pty Ltd v Sign Decision Pty Ltd (Civil Claims) [2020] VCAT 395	

Order

For the reasons provided in writing, the Tribunal orders that:

1.	The application is dismissed.

2.	The respondent’s costs are reserved. Any application for costs must be made in writing, supported by written submissions, no later than 30 April 2020.

3.	The principal registrar is directed to refer any application for costs to Member Galvin, where further directions will be made in chambers in relation to the cost application.

D. Galvin
Member
APPEARANCES:		
For Applicant	Mr Dragojlovic and Mr Schulze both of Counsel	
For Respondent	Mr Tony Carter	

Reasons

THE BACKGROUND

1.	328 Hampshire Road Pty Ltd (Hampshire) owns the Sunshine Plaza site (the site). In 2017, through its managing agent, Colliers International Pty Ltd, (Colliers), it engaged Sign Design Pty Ltd (Sign Design) to replace and reface the signs and banners at the site (the Works) pursuant to an agreement.

2.	Hampshire is seeking $18,034.68 from Sign Design in this proceeding as compensation, claiming the Works were not completed in a reasonable time or in accordance with the agreement.

3.	For the reasons that follow I find that Sign Design was prevented from completing the Works and any loss suffered by Hampshire arises from its wrongful repudiation of the agreement.

THE AGREEMENT

4.	In determining the terms of the agreement for the Works, (the agreement), it is necessary to set out the discussions between the parties, including email exchanges and quotations.

5.	On 9 October 2017, Sign Design made contact with Colliers, offering its services to improve the “tower signs” which “looked a bit shabby in parts” on the Sunshine Plaza site.

6.	Colliers replied stating that they were interested in replacing the signage, with various discussions back and forth, ultimately leading to a proposal by Sign Design dated 19 October 2017:

Quote Q3544, for $22,940.00 plus GST (broken down to $6,280.00 plus GST and $16,660.00 plus GST, describing the Works as:

“Changeover of signage at Sunshine Plaza, as per detail received & photos taken as follows- Site check & measure rear smaller flexface to back of Centre clocktower involves 150ft boom in rear carpark to reach, measure & check others - Replace 8 tower sign flexfaces (7 by 2600mm x 4000mm & smaller one t.b.c.). This is to repanel the 4 faces on each of the corner & centre clocktowers. Also we allow to repanel the 2 larger freestanding flexface signs (6000mmx 2000mm) facing into the rear carpark”.

7.	A meeting took place on site on 23 October 2017 between Leong Lee, the director of Hampshire, Davis Burgham of Colliers and Tony Carter, the director of Sign Design. Sign Design confirmed the discussions that took place, including variations to the planned Works. The revised proposal included adjusting the freestanding signs (one facing Hampshire Road), deleting the site check, allowing extra sailtrack for the rear sign and any partly damaged signs where some faces were flapping. The adjusted price for the quote was $17,050.00 plus GST:

Email from Tony Carter to David Burgham on 23 October 2017, “Hi Leon & Dave, Great to meet you today Leon & we would welcome the opportunity to assist here. Would be nice to sort this problem for you finally..!!.. Have revised the proposal, as discussed, & see attached, to adjust the freestanding signs (one facing Hampshire Road), deleted the site check & allowed extra sailtrack for the rear sign and any partly damaged where some faces are flapping. The faces have a UV protective coating with a 3 to 5 year warranty, so be assured of a first class result & have included a little detail & some photos on us following.. All the best….”

8.	The quote stated that once a deposit of 50% was paid and all graphics approved, the works would be completed within 3-4 weeks.

9.	After this point, discussions continued between Colliers and Sign Design only. 

10.	On 25 October 2017 Colliers approved the Works in an email:

“Your flexface signs

As per discussion this is approved to go ahead.

I will send you the colours you require”.

11.	On 30 October 2017, Colliers advised that one of the tower banners had detached itself, offering it up to Sign Design for a “proper measure”.

12.	In early November 2017 there were further discussions about the payment of the deposit when Colliers advised Sign Design that Hampshire did not wish to pay the agreed deposit as it considered it too much. A deposit of $3,000.00 plus GST was agreed and Colliers, on the 14 November 2017, made the payment.

13.	Over mid-November 2017 there were various requests for information and designs associated with the artwork for the banners, before Sign Design asked for exact measurements of the free standing banners on 23 November 2017:

“..& Dave can you get the freestanding ones measured mate, these need to be pretty exact as they fit on the lightboxes..for the tower ones, not so important as they don’t have to be exact (am making these at 2500w x 3500 high...can you check that’s bout 40mm under the banner size) …want get these scaled & put into production..”

14.	Colliers subsequently sent photos displaying measurements to Sign Design and additionally advised that the tower sign sizes were 238cm in length and 90cm in height.

15.	On 4 December 2017, Sign Design sent a further instalment invoice to Colliers for $9,735.00 for “Flexfaces paid on pick-up”.

16.	Further discussions took place about the design for the banners, with plans to remove the height barrier for installation in mid-December 2017 put on hold pending finalisation of the artwork.

17.	On 19 December 2017, Sign Design took issue with the Colliers delay in paying the invoice for $9,735.00:

“Hope you got paid today Dave….We DIDN’T..no remittance or money..!!...Our supplier’s not happy..you/Leong bust our balls to get it done (it’s been stuffed for mths)…can’t/wont pay the initial 50%.....Nor follow up the next payment (tell Hans he won’t be required for a while…) advise asap..”.

18.	Colliers advised that there had been an issue with “pay-runs” and eventually payment of the amount of $9,735.00 was made by Colliers on 20 December 2017. Further discussions then took place confirming that the contractors would be back on deck in late January 2018, and that Sign Design would be in contact with Colliers at the end of January to arrange the installation.

“Good to talk before and as mentioned we got the $....We have the access people back week of Jan 22 and will touch base with you week of Jan 29 to co-ordinate the install…Cheers mate….And have a great Xmas.”. 

19.	The time line was agreed to by Colliers:

“Likewise, lets stick to the planned time in January”.

20.	During the course of December 2017 the artwork/graphics were yet to be finalised:

“Please find attached artwork and quotation for approval. Please send sample for colour matching”. 

21.	On the following day, 14 December 2017, Billboard media advised Sign Design that they would put the job into production once they were paid.

22.	 Discussions continued as to confirmation whether the colour used was colour 144, Colliers expressing that Hampshire “wants assurances this was the case” as late as 31 January 2018.

23.	On 12 February 2018 Sign Design issued a further invoice for $4,900.00 plus GST acknowledging that it had already received payment of the $3,300.00 deposit and $9,735.00 for the flexfaces.

24.	On 20 February 2018 Colliers advised Sign Design:

“I have spoken with my boss Susan Etches today regarding the current situation.

-	She has assured through me to you that full payment will be made as and when the banners are installed.

-	With any outstanding contractor job over a certain period of time we have to escalate the issue through our FM team which may put any future works you may have with Colliers at risk. (we have to explain!)

-	so with that in mind can we have an install date?

-	I just want to get this done and get you paid up mate

-	Happy to talk….”

25.	In response Sign Design advised Colliers:

“Mate..tell Susan it’s happening, but these guys are booked out for months…Doing the real big shit…hoping one night next week..you’ll be the 1st to know…!!!...Cheers me”. 

26.	In response Colliers sent an email to Sign Design stating: 

“Thanks mate, beer or three for you”. 

27.	Ultimately the installation date was agreed to take place on 19 March 2018 and the works commenced. However, the works were not completed at that time and Colliers informed Hampshire on 20 March 2018 that:

“Hi Leong,

-	South Tower completed last night, it looks much better.

-	North Tower tonight.

-	The 2 large banners were incorrectly sized (too small) so there are two new ones of the correct size being produced as we speak - they will then be installed using the scissor as its pretty low height.

-	As for the “difficult one” the boom won’t reach, its 2 metres short. I had Nick out from Quick Access and even he couldn’t manage it.

-	It took up a fair bit of time hence the 2 night program of works.

-	Plan is to have both towers completed by end of tonight, see below regards North Tower issue.

-	2 large Banners by end of week.

North Tower Issue

The boom we used last night was 5 Tonnes. The next piece of equipment that will reach is around the 15 tonne mark and I really don’t think the slab will take that kind of weight.

Alternatively we are looking at Truck on Hampshire Road with traffic management at a huge cost (To Tony).

As above the plan is to complete all but I’m trying to work with Tony to get a cost effective solution, I have reminded him that he quoted to complete the lot so expectation is this happens.

He’s said he’s losing money now but that’s really not our problem that’s his.

Not ideal but I will be all over it again tonight to get this completed to a satisfactory conclusion, as I’ve mentioned what has been done looks really flash and slick.”

28.	On 20 March 2018 a further attempt was made to install the signs. Three clocktower signs were installed. However, the installation was incomplete as the attempt to install the freestanding sign on the lightbox was not successful.

29.	Following the failure to complete the installation discussions commenced as to what was required to complete the Works and Sign Design advised on 24 March 2018 that for $1,000.00 extra the banner signs could be rectified and that completion of the Works may cost a further $5,000.00. A copy of an invoice for works undertaken was attached to the email correspondence. On 28 March 2018 Sign Design again contacted Colliers stating:

“tonight” ‘Mate ..we want to get the 2 large banners off & acc sorted as per email a few days back..get this done and dusted, really costing us..!!..me.”

30.	The director for Hampshire had been overseas during the installation attempt and upon his return and on his own initiative arranged for the incorrectly sized banners to be delivered to Sign Design’s subcontractor, Billboard Media, and instructed them to attend to their rectification. Sign Design was not informed that this had occurred.

31.	In response to the email from Sign Design of 28 March 2018, Colliers advised that:

“The Landlord won’t budge his expectation is the job is completed as per the quote. I’ve been told not to supply and help/Labour etc as it’s already cost in excess of 3K. He’s not happy.”

32.	In response Sign Design stated: 

“Where’d this come from you said you’d been advising him..??!!..on the problems we had, we couldn’t have done it as large banners wouldn’t work (you measured these)…

33.	Colliers then sent a response stating:

“It is your responsibility to check measurements not ours. You were sent clear pictures and advised you will need to check. (pictures submitted -photos only) Also the equipment hired was clearly inadequate that’s also down to you. Optus did work on their tower were in and out in hours no issues. The correct equipment was used. If you’ve underquoted that’s nothing to do with us. Leong has been kept up to date but when I’ve told him you require further payment well that’s when he asks questions. So please come up with a plan to complete as per quote and rectify with the white tracks as agreed. So If I’m reading this right you are leaving us with a job half done...and a banner is missing. I have instructed to have you removed from Colliers and any affiliated Real Estate businesses 

contractor lists. Also I will instruct our Lawyers if I don’t get a satisfactory conclusion to this job. 1 week deadline. Otherwise I will get someone else to finish it and charge it to you. If you walk off the job that’s up to you but have a think about how much help I’ve given you and you’ve pretty much destroyed the look of the centre. We’ve been more than patient. I also am aware you were advised the boom wasn’t guaranteed to do the job. So a little self-reflection here I think. Going off at people you’ve let down isn’t the answer. It’s down to very poor planning from you and no one else. I’ve advised Leong all along you will sort it. Asking for more money because of poor execution isn’t the answer.”

34.	Sign Design disputed its responsibilities in relation to the site measurements, with several email exchanges between it and Colliers on 29 March 2018 to “sort it out”.

35.	Following this exchange Sign Design was unable to make contact with Mr Burgham or Nick Sardi, the employee of Quickaccess, another subcontractor of Sign Design, to gain access to the site. 

36.	The agreement was then terminated by Colliers in an email to Sign Design on 23 April 2018 - “Banner job” “Tony,

-	The landlord has instructed that we now take over the job of completing the banners at Sunshine Plaza.

-	So any arrangements you may have made are now not necessary.

-	We will be in contact shortly regarding your account”

37.	Following Collier’s letter of termination to Sign Design various works were undertaken at the site in May 2018 by RMW Electrical for $1,680.00 for rewiring and GDP Group Pty Ltd (GDP) for $2,614.67 for installation of one signage panel.

38.	David Burgham ceased to be employed by Colliers in June 2018.

39.	Mr Sardi, former Quickaccess employee and now working for GDP, provided a quotation for “remedial work” to Hampshire in July 2018 to install 4 signage panels and associated decorative tracking and perform remedial works to 6 signage panels alleged to have been “incorrectly installed previously and/or in a non-workmanlike manner by others”. 

40.	GDP was subsequently engaged by Colliers on Hampshire’s behalf and invoiced these works in the amount of $25,957.01 on 11 September 2018.

41.	On 7 November 2018, some 7-8 months after the termination of Sign Design, Susan Etches, Director - Retail, Real Estate Management at Colliers, wrote to the director of Hampshire, in relation to Sign Design, stating:

“…The behaviour of the principal of this company became extremely unprofessional during the course of this engagement and the experience with them and their poor quality of workmanship ultimately resulted in them being stood down from the appointment and we then had to engage the services of GDP to rectify and complete the works that Sign Design were originally contracted to do, at additional cost to you as the owner……Due to the very unprofessional behaviour of this contractor, Colliers International have blacklisted them and will not use their services in any capacity in the future…”

THE AGREEMENT - VARIATIONS

42.	There is a dispute as to which quotation submitted by Sign Design formed the basis of the written component of the agreement to perform the works to changeover the signage at Sunshine Plaza. 

43.	Hampshire alleges that the relevant quote for the works was for $22,940.00 plus GST and included a site check.

44.	Sign Design alleges that a second quote for $17,050.00 plus GST was prepared following discussions with Colliers and Hampshire at a meeting on 23 October 2017. Sign Design further alleges that the quote was amended so that the reference to a site visit was removed and an addition made stating immediately following the reference to (600mm x 2000mm) “you to confirm measurements”, and a note was introduced which stated “Note, as discussed we have allowed the rear sign to be the same size as the others and allowed the rear sign to be the same size as the others and allowed 3 lengths of sailtrack to hold this rear flexface and any loose faces needing repair, the sailtrack is $130 per length.” The revised quote was for $17,050,00 plus GST broken down so that $16,660.00 plus GST was for the works, other than the site measure, contained in the first quote and $390.00 plus GST was for the sailtrack. 

45.	The evidence of Colliers and Hampshire was that they had never sighted and were unaware of the second quote. However, the Tribunal has referred to email exchanges between Mr Burgham (of Colliers) and Mr Carter (of Sign Design) which suggest that the first quote was not representative of the terms of the agreement and that the second quote reflects what transpired between the parties.

46.	The email from David Burgham to Tony Carter on 10 October 2017 is an early email in relation to discussions between these 2 men about the prospect that Sign Design be engaged by Hampshire to perform the works and states that “a site visit would be great”. In response Sign Design sent an email on 13 October 2017 seeking confirmation of the size of the smaller face at the rear of tower (the tricky one)”. There is no further email evidence before the Tribunal as to whether this request was responded to. However, measurements were contained in both quotes and on balance these must have been provided by someone to Sign Design. 

47.	On 23 October 2017 Sign Design sent an email to Colliers referring to a meeting with Mr Lee and Mr Burgham on that day stating that a revised proposal was attached, “as discussed”, deleting the reference to a site visit and allowing for extra sailtrack. In evidence Mr Lee confirmed that a meeting had occurred where a payment was discussed about sailtrack. Mr Carter gave evidence that the cheaper option discussed at the meeting, deleted a site visit avoiding required traffic management to measure the illuminated light boxes and the associated cost. He stated that his second quote reflected what had been agreed at the meeting.

48.	The Tribunal notes that it did not receive any minutes of meeting or diary notes to support a version of what transpired at this meeting or any other meetings that took place. 

49.	However, discussions continued between Sign Design and Colliers after the provision of the first quote dated 19 October 2017 and after the go-ahead given by Colliers on 25 October 2017, as evidenced by the inclusion of a sailtrack extra and the adjustment of the deposit amount. The Tribunal finds that the terms of the agreement were varied as a result of these discussions and exchanges accordingly. 

50.	Hampshire put to Mr Carter that the second invoice was back-dated and that the conclusion is that he fabricated and altered documents. The Tribunal is of the view that documentation throughout this project was tardy, imprecise and occasionally incorrect and that the consequence was that uncertainty as to what had been agreed to be undertaken arose. The imprecise documents were not an issue at the time of payment by Colliers of the deposit or the next instalment of $8,525.00 (plus GST) invoiced on 4 December 2017 by Sign Design and arising from and in accordance with the second quote. 

51.	The issue as to who was responsible for the site measurements first arose when Sign Design requested further funds to complete the works in an email to Colliers on 24 March 2018. The incorrectly sized lightboxes required rectification to complete the works. Mr Carter, in evidence, conceded that these lightboxes required rectification work in any event as the incorrect fabric had been used in constructing them. 
52.	Hampshire also submitted that because Sign Design did not request ‘measurements” along with other requests for confirmation about colours and photos to prepare mock up signs, in an email dated 25 October 2017 to Colliers, Sign Design was not expecting to receive any measurements.  Hampshire submitted that this was evidence that Sign Design would measure the signs. However, the Tribunal refers to the email from Sign Design, copied to Colliers and dated 23 November 2017, which states:

“ Cheers mate ..& Dave can you get the freestanding ones measured mate, these need to be pretty exact as they fit on the lightboxes..for the tower ones, not so important as they don’t have to be exact (am making these at 2500w x 3500 high..can you check that’s bout 40mm under the banner size) …want get these scaled & put into production..”. On 29 October 2017  Colliers sent photographs showing measurements by hand entitled “Car park banner”. Counsel for Hampshire suggested the Mr Burgham had provided these measurements as he was frustrated that the project was not moving on and the signs were not yet measured. The contemporaneous emails do not support this assertion.

53.	It is apparent from this email that measurements were being sought from Colliers and subsequently provided, without issue, as evidenced in an email dated 30 November 2017 from Colliers to Sign Design stating:

“Ok mate see what I can do…Also one of the Banners decided to detach itself from the Tower I’ve retrieved it so if you want to do a proper measure you can….”. 

54.	On the same day Sign Design sought confirmation of measurements from Colliers:

Guys….Confirming 7195mm x2395mm for these signs, assume the 2 of these are the same size Dave..?? and Richie will pop out tomorrow to check the banner on the ground inside…and the exact Dimmey’s scope.”

55.	Colliers responded by stating:

“The tower sign sizes for reference are 238cm length and 90cm height”

56.	Mr Carter, in evidence, having claimed he did not attend and perform a site measurement check, conceded that he did attend to measure the detached sign.

57.	It is apparent that Colliers was providing measurements to Sign Design and only invited the attendance of Sign Design to attend to do a “proper measure”, of the detached sign, if he chose to do so.

58.	The conduct of Colliers and Sign Design in email exchanges does not support a conclusion that Sign Design was responsible to undertake measurements as envisaged in the first quote. The Tribunal finds that Sign Design was not responsible for the taking of the measurements provided by Hampshire.

59.	The Tribunal finds that the terms of the agreement, as evidenced by the actions of the parties, support a finding that the first quote was varied by the second quote. This second quote, is supported by the conduct of Colliers and Sign Design after the date of its provision.

BREACHES

Failure to Install

60.	It is alleged that Sign Design failed to install the signs in December 2017, on 23 January 2018 and on 14 February 2018.

61.	It is clear that the project was dogged by delays.

62.	Hampshire claims that it expected the Works to be undertaken by the end of October 2017. it also claims that Colliers was becoming frustrated about the finalisation of a commencement date. However, Hampshire concedes that it was not aware of the numerous email exchanges between Colliers and Sign Design and was relying on information provided by Colliers. 

63.	Hampshire claims that in reliance on the information being provided by Colliers, it consequently lost confidence in Sign Design.

64.	The Tribunal notes that neither quote submitted by Sign Design stated a completion date. The quotes did state that “N.B. Installation date is 3 to 4 weeks from customer approval of graphics”. 

65.	It is not clear from the correspondence when the graphics were finally approved. However, there were continued email exchanges between Colliers and Sign Design confirming details up until January 2018 revealing that uncertain details were to be clarified. 

66.	Mr Burgham was on leave for 2 weeks from the 12 January 2018 and given that he was the only Collier’s employee with whom Sign Design was dealing with during the Works it was not realistic or possible that the alleged installation dates of December 2017 or January 2018 were at all possible or agreed in the absence of confirmation that outstanding concerns were resolved. Further the email exchanges at this time indicate that there was a mutual desire to install at the end of January 2018. The time for the commencement of the works was therefore extended and therefore varied by agreement to the end of January.
67.	There is an absence of evidence of communication on the installation date until 20 February 2018 when Colliers sent an email to Sign Design requesting an installation date without referring to any abandoned or failed date to install. 

68.	This email is evidence that an install date on 14 February 2018 was not agreed as a date was yet to be finalised.

69.	There is no indication in the email correspondence that Sign Design was in breach of any agreement as to an installation date in December 2017, January 2018 or February 2018. As there was no agreed time to complete the works, there was no breach of the agreement by Sign Design in relation to time and therefore there was no entitlement for Hampshire to terminate the agreement accordingly.

Breaches - Adequacy of Equipment

70.	Hampshire also alleges that Sign Design breached the agreement in that it failed to provide adequate equipment to install the signs. The quotes do not refer to what or how equipment is to be used for the installation of the signs. There is evidence of a cooperative approach in relation to the installation between Colliers and Sign Design, there being no indication of a failure to perform by Sign Design until the Colliers email of 28 March 2018.

71.	Prior to this email Colliers had sent an email to Sign Design on 20 March 2018 stating - “Jerry is lined up for tonight. A couple of things:

-	How long for the large banners? We can provide help and a scissor lift.

-	Also I’ve noticed the white surround on 2 of the banners isn’t all the way around and it sticks out like a sore thumb.”

72.	On the same day Colliers informed Hampshire that the installation was underway but incomplete, the plan being that the installation would be completed on that night. Further, Colliers state that the boom used was too short and mentioned alternatives of a larger boom which may not be supported by the slab or using a truck from Hampshire Road with consequential traffic management and cost implications for Sign Design. The completed works are described as “really flash and slick” there being no suggestion that they were of poor workmanship. 

73.	This email is the first presented to the Tribunal whereby Colliers had communicated the status of the installation to Hampshire. However, there is a clear issue in relation to the equipment utilised as being inadequate to complete the installation. The reference in the email to the incorrectly sized 2 large banners does not cast blame for the sizing on Sign Design. The issue as to the slab not being able to sustain a greater weight has not been raised previously and there is no evidence before the Tribunal that this risk was communicated to Sign Design at any stage. The evidence of Colliers was that the carpark was new however, there are no available documents, specifications or relevant information as to the load bearing capacity of the slab. The Tribunal notes that the quote provided by GDP to Colliers included an assumption that “Load rating specifications can be provided for car park area”

74.	According to the evidence of Sign Design, the original quote had made provision for traffic management to measure the signs. However, there was no apparent consideration of this risk in the installation. What was clear was that Colliers was negotiating with Sign Design to seek a resolution of these issues.

75.	The issue in relation to the appropriateness of the equipment was therefore not resolved prior to termination. 

76.	The Tribunal finds that the agreement, as contained in the second quote, did not refer to any specific equipment use and the on-site resolution of the problem of installation was under discussion with Colliers and Sign Design prior to Colliers email demanding installation in one week. The agreement did not mention any risk in utilising the slab nor detail anticipated installation methodology. Sign Design did not therefore breach the agreement in this regard as there was no agreed method in the agreement.

Breaches - signs required remedial work and replacement

77.	Hampshire alleges that Sign Design failed to install the signs as agreed. Of the 9 signs supplied, Hampshire claims that 2 were the wrong material rendering them unusable, 1 was incorrectly sized and not suitable for its intended purpose and 6 of the 9, that were used and installed, required remedial work.

78.	Sign Design conceded that the 2 lightboxes were incorrectly sized and the wrong fabric had been ordered for their manufacture. The measurements were not the responsibility of Sign Design but the fabric selection was. Hampshire alleged that the incorrectly sized signs had been left exposed by Sign Design since the failed installation date of 19/3/18. However, Sign Design could not have attended to the rectification of this issue in a vacuum. The unavailability of Colliers staff and Mr Sardi, the contact at Quickaccess, prevented Sign Design from attending to any rectification required. The extent of proposed 

rectification issues had not been communicated, with any specificity, to Sign Design prior to the termination of the agreement by Colliers. What is apparent is that Sign Design was not given an opportunity to remedy any issue as perceived by Colliers, or clear instructions about all of the problems or concerns that Colliers had. The movement of  Nick Sardi from Quickaccess to  GDP (the company engaged to rectify and complete the works) lead to some arguably self-serving comments about workmanship following the termination of the agreement with Sign Design.  The Tribunal did not hear from GDP in relation to the works that they performed.
 
79.	It was conceded by Sign Design that remedial works were required to be performed by Sign Design in relation to the fabric selection. However, the extent and nature of other issues was not clarified, detailed or communicated to Sign Design prior to the demand to remedy or the termination. The historic email exchanges between Colliers and Sign Design indicate that remedial works were under discussion and their nature and extent were yet to be concluded.  

TERMINATION

80.	It is apparent that the Collier’s email, demanding completion by Sign Design, on 28 March 2018 was of a different tone from previous exchanges. Previous email exchanges displayed a cooperative approach to resolving issues as they arose. Colliers had a meeting with Hampshire who was dissatisfied with the progress of the works. However, there had been no previous accusations raised by Colliers that the works that had been completed were anything other than “really flash and slick”. 

81.	In the email demand Colliers stated that measurements were sent and Sign Design was advised to check these. However, the evidence does not support this claim. The email exchanges do not suggest that the measurements provided needed to be reviewed or confirmed by Sign Design. 

82.	There was no evidence before the Tribunal that Sign Design had threatened to terminate the agreement or repudiate the agreement as submitted by Hampshire. 

83.	The email exchanges between Colliers and Sign Design prior to the demand email display a clear intent to continue to discuss a resolution to the issues raised. However, the evidence of Sign Design was that Mr Carter was, thereafter, unable to contact David Burgham. There was no evidence before the Tribunal that Colliers contacted Sign Design to facilitate the implementation of its demands. In the absence of any evidence from Collier’s staff, who Mr Carter spoke to when leaving phone messages, the Tribunal has no reason not to accept the evidence of Sign Design’s attempts to resolve the issues.
84.	The effect of this lack of communication was that any discussions seeking to resolve the issues or any rectification to be undertaken by Sign Design was prevented by the conduct of Colliers.

85.	In evidence Colliers described the behaviour of Mr Carter as erratic which had become unprofessional towards the end of March and April and claimed that Sign Design made no effort to complete the works or rectify them. The email exchanges at this point do not support this version of events. 

86.	To the contrary, Mr Carter stated that his dealings with Colliers were amicable. He stated that he was unaware of any issue about ending the relationship until 28 March 2018 as prior to this date everything was being managed. 

87.	Sign Design was prevented from being able to rectify the issues by the absence of Mr Burgham, who was the only Colliers’ employee who Mr Carter had effective communications with. The inability to resolve the issues which were still under discussion, as indicated by Colliers last email prior to the demand email, do not support Hampshire’s assertion that Sign Design had walked off the job having made a demand for more funds. The email exchanges suggest that the issues were very much under discussion.

88.	Colliers says that on instruction from Hampshire the termination letter had been sent. Hampshire had relied on the version of events provided to it by Colliers having not made any inquiries of Sign Design directly. Hampshire’s Mr Lee, also stated that on his own initiative, had arranged for the incorrectly sized banners to be delivered to Billboard Media for alteration. Billboard had been engaged by Sign Design to manufacture the banners. There was no evidence that Sign Design knew at the time or was advised of Hampshire’s intervention. Hampshire also arranged for payment of the invoice of V&S Maintenance Solutions for the delivery of the signs to Billboard Media on 26 March 2018. All of these interventions by Hampshire predate the demand email. The conduct of Hampshire further prevented Sign Design from having the opportunity to rectify, where appropriate, any problems with the signs. Hampshire then instructed Colliers to write the termination letter. 

89.	Hampshire claimed that it had been told that requests for Sign Design to attend to rectification had been ignored and that Mr Carter had been abusive. This information originated  from Mr Burgham, of Colliers.

90.	It is apparent that the conduct of Colliers and the intervention of Mr Lee in seizing control of the banners and their rectification, prevented any rectification work being arranged or carried out by Sign Design and prevented the completion of the works. 

91.	Having terminated the agreement, where there had been no breach of the same by Sign Design, for the reasons set out above, Hampshire prevented Sign Design from completing or rectifying the works and as such, it was Hampshire that repudiated the agreement. Sign Design was also prevented from responding to this repudiation such that it was not able to accept or reject the repudiation. Hampshire’s termination was therefore premature and unreasonable. 

LOSS/DAMAGE

92.	Hampshire alleges that because Sign Design breached the agreement it suffered financial loss of $18,034.68 being the difference between the Sign Design quoted price of $25,234.00 and the sum Hampshire was forced to expend to complete the Works and interest from the date of filing the application and costs.

93.	It is not necessary for me to determine the loss and damage suffered, as I have found there was no breach by Sign Design, nor any wrongful repudiation of the agreement by it.

94.	Any loss or damage suffered arose due to the actions of Hampshire and it is a loss it must bear.

CONCLUSION 

95.	The Tribunal finds that because Sign Design was prevented from rectifying or completing the Works by the agent for Hampshire, acting on Hampshire’s instructions, Sign Design cannot be held responsible for the extra costs incurred as a result of engaging another contractor to do so.

96.	The consequence is that Hampshire has failed to prove its claim that there has been any breach, wrongful repudiation or loss occasioned by Sign Design, and as such the application will be dismissed.

97.	This matter took place over a number of hearing days, with additional directions made for submitting evidence. As such further orders will be made accommodating for any application by the respondent for its costs of the proceeding.

D. Galvin
Member

2 April 2020