ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SADAT v TANESKI (Civil Dispute) [2018] ACAT 39

XD 837/2017

Catchwords: CIVIL DISPUTE – oral agreements to carry out work inside and outside applicant’s property – part payment – defective workmanship – unfinished work – agreements terminated – works completed by other tradespersons – claim for damages

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 16, 17, 18, 20, 48

Cases cited: Bellgrove v Eldridge (1954) 90 CLR 613Robinson v Harman (1848)154 ER 363Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8

Tribunal: Presidential Member E Symons

Date of Orders: 6 April 2018Date of Reasons for Decision: 6 April 2018

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 837/2017

BETWEEN: MIRWAIS SADATApplicant

AND: CVETKO TANESKIRespondent

TRIBUNAL: Presidential Member E Symons

DATE: 6 April 2018

ORDER

The Tribunal orders that:

1. Judgment for the applicant in the amount of $10,480.46 being $10,330.46

damages and the filing fee of $150.00.

2. The respondent pay the judgment monies of $10,480.46 to the applicant by

close of business 4 May 2018.

3. Subject to Order 4, upon receipt of the payment in order 2, the applicant

forthwith instruct Still Standing Sheet Metal Pty Ltd of 15 Wiluna Street,

Fyshwick to release to the respondent the materials they are holding for Carport

2.

4. If the respondent fails to pay the judgment monies to the applicant by the due

date in Order 2 the applicant retains ownership of the carport materials in Order

3 and may dispose of them as he sees fit.

………………………………..Presidential Member E Symons

REASONS FOR DECISION

Introduction

1. These proceedings have arisen from a series of verbal agreements entered into

between the parties for the respondent to carry out works for the applicant at

his property in Kaleen.

2. The reasons below explain why the Tribunal has entered judgment for the

applicant in the sum of $10,485.46 and made orders in relation to the carport

material being held by Still Standing Sheet Metal. The respondent withdrew his

counterclaim at the commencement of the hearing. It was formally dismissed

on 8 January 2018. The Tribunal has made orders in relation to the payment of

the judgment monies to the applicant and the release of the materials for the

double carport held by Still Standing Sheet Metal to the respondent.

3. In these reasons for decision the tribunal hearing this matter is referred to as

Tribunal. References to the tribunal or ACAT in these reasons refer to the ACT

Civil and Administrative Tribunal generally.

Background

4. In 2013/2014 Mirwais Sadat (the applicant) had entered into a contract with

Kashan Constructions Pty Limited (Kashan) to build an extension on his

property. This contract came to an end in early 2015 when Kashan failed to

meet its contractual obligations. At this time Kashan had not completed parts

of the work the subject of the contract. While Kashan was undertaking the

work at the applicant’s property Cvetko Taneski (the respondent) worked as a

sub-contractor for Kashan on the floors in the applicant’s kitchen, bathroom

and laundry.

5. In mid-2015 the applicant engaged the respondent to complete some of

Kashan’s outstanding work. The respondent completed these works. The

applicant paid the respondent for this work.

6. In or about May 2017 the applicant entered into an oral agreement with the

respondent to rectify the uneven flooring in the lounge room and spare

bedroom in the extension to the property. Thereafter the applicant and the

respondent entered into further oral agreements to carry out various works

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inside and outside the applicant’s property. Various issues arose in relation to

the quality of the respondent’s work and the respondent’s use of the applicant’s

partner’s credit card for the purchase of two carports instead of one carport.

The agreements came to an end when the applicant advised the respondent in

mid-June 2017 not to return to his property.

7. The applicant sought damages in the ACAT from the respondent for the

respondent’s unsatisfactory work and for the applicant’s consequent losses.

The respondent opposed the application and filed a counterclaim for unpaid

invoices.

The proceedings

8. The applicant filed a civil dispute application (the application) against the

respondent on 12 July 2017 in the ACAT seeking :

…reimbursement of the fraudulent transaction made on my credit card and compensation for loss and suffering as a result of Steve’s [the respondent] inability to complete the terms of the contract for the levelling of flooring, dodgy work, replacement of laundry unit, levelling of yard, carrying out electrical work without being licensed and not providing a certificate of work, loss of rent incurred and interest.

9. On 9 August 2017 the respondent filed a response to the application in which

he admitted working for the applicant “on a time and materials basis for a daily

rate (some of which I have been paid for).” He stated in the response:

I worked as directed by Mr Sadat … I have no formal agreement with Mr Sadat and only a verbal one to work as directed by him, there is nothing in his claim which can be substantiated.

10. The parties attended a conference and evaluation on 11 September 2017 at the

conclusion of which the application was set down for hearing on 11 December

2017 and directions were made for the filing of further material by both parties.

The applicant and the respondent complied with the directions.

11. In the documents the applicant filed on 5 December 2017 (the 5 December

documents) he amended his claim from $15,600 to $27,340.

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12. The respondent included in the documents he filed on 6 December 2017 his

counter-claim (the counter-claim) for $2,240 inclusive of GST plus the filing

fee and interest from 22 June 2017. The respondent alleged that this amount

was owing to him by the applicant, after deduction from his invoices, which

totalled $8,690.00, $6,450 which had been paid by the applicant. This counter

claim was withdrawn on 8 January 2018.

13. The matter was heard over two days 11 December 2017 and 8 January 2018.

The applicant was represented by his Power of Attorney, Nyomi Bourbous, and

the respondent was represented by his Power of Attorney, Michael Ninness. At

the hearings both parties gave evidence and were cross examined. The

applicant’s partner, Nyomi Boubous, also gave evidence and was cross

examined. The respondent withdrew his counter-claim and it was, by order,

dismissed. After hearing submissions from the parties the Tribunal reserved its

decision. This is the Tribunal’s decision.

Legislation

14. Section 17 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT

Act) provides that a person may make a civil dispute application to the

tribunal.

15. Section 16 of the ACAT Act states that a civil dispute application consists of

one or more of the following:

(a) a contract application;

(b) a damages application

(c) a debt application

…

16. The application is a claim for damages arising from a breach of the contract

between the applicant and the respondent. The counter-claim was a debt

application.

17. The tribunal has, in relation to civil dispute applications, the same jurisdiction

and powers as the Magistrates Court under the Magistrates Court Act 1930,

part 4.2 (Civil Jurisdiction).

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18. Pursuant to section 18 of the ACAT Act, a civil dispute application cannot be

made to the tribunal for an amount greater that the tribunal’s jurisdictional limit

of not more than $25,000 unless section 20 of the ACAT Act allows the

application to be made.

19. Section 20(2) of the ACAT Act provides that a person may abandon the

excess1 by limiting the claim to $25,000.

The issues

20. The parties agreed and the Tribunal finds that the applicant and the respondent

entered into various oral agreements between mid-May 2017 and mid-June

2017 for the respondent to undertake various works at the applicant’s property.

These works included internal work and external work.

21. The parties disagreed as the terms of some of the oral agreements, the quality

of the respondent’s work and the damages claimed by the applicant. The

Tribunal considers these issues below.

Consideration

The applicant’s evidence and submissions

22. In the 5 December documents the applicant broke down his claim as follows:

(a) Relevelling of flooring in lounge and spare bedroom $ 1,000

(b) Repainting of wall where respondent patched holes he had

made and painted a strip of undercoat $ 1,500

(c) Door to replace door which respondent cut bottom off $ 450

(d) Relevelling of back yard $ 1,000

(e) Payment to electrician to complete certification and issue

Certificate $ 540

(f) Costs incurred to install single carport and refund of

respondent’s fraudulent purchase on credit card $ 6,500

1 Section 20 (1) This section applies if a person would be entitled to make an application claiming an amount greater than $25 000 in a court of competent jurisdiction.

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(g) Replacement laundry cabinet damaged by respondent $ 1,500

(h) Loss of rent for six months $11,700

(i) Pain and suffering $ 2,000

(j) Filing fee $ 150

(k) Return and re-erection of old carport $ 1,000

TOTAL $27,340

23. Pursuant to section 20(2) of the ACAT Act the applicant abandoned any excess

of his claim exceeding $25,000 at the commencement of the hearing.

24. The applicant relied on the following documentary evidence:

(a) Chronology of events from 2014 to 11 September 2017.

(b) List of amounts claimed by the applicant.

(c) Table setting out invoices from respondent, whether work is outstanding,

amount claimed by respondent, why applicant is disputing the

respondent’s claims, amounts quoted by contractors to do the work and

amount claimed by applicant.

(d) Appendix 1 – four receipts from respondent, applicant’s receipt for

purchase flooring, underlay and skirting boards and photograph of

flooring.

(e) Appendix 2 – photographs sliding door inside and outside.

(f) Appendix 3 – photographs slab floor after old flooring removed and after

new flooring laid.

(g) Appendix 4 – internal and external photographs of front door.

(h) Appendix 5 – four photographs of applicant’s yard prior, during and after

the respondent’s work.

(i) Appendix 6 – photographs of applicant’s front yard prior to and after

respondent’s work.

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(j) Appendix 7 – photograph of original carport and documents from Still

Standing Sheet Metal Pty Ltd (SSSM) and EFTPOS receipt and emails to

and from ACT Planning 31 May 2017 and 6 June 2017.

(k) Appendix 8 – two photographs of dining room floor boards.

(l) Appendix 9 – eight photographs of laundry cabinet; photographs of bin

cupboard and photographs of installed dishwasher and cupboard.

(m) Appendix 10 – receipt for dishwasher.

(n) Appendix 11 – receipt for additional floor boards purchased by applicant

and photograph of living room floor after levelling agent applied (1 June

2017).

(o) Appendix 12 – two photographs of living room floor after second

levelling agent applied (11 June 2017).

(p) Appendix 13 – email from SSSM 11 December 2017.

(q) Appendix 14 – photograph of disassembled old carport.

(r) Appendix 15 – quotations from Hood’s Carpet Court 29 September 2017

and Canberra Floorworld 3 October 2017.

(s) Appendix 16 – painting quotations from Superb Services 17 September

2017 and CG Home Maintenance Services dated 10 August 2017 and

Bunnings receipt dated 4 June 2017.

(t) Appendix 17 – receipt dated 16 October 2017 JB Slab Pty Ltd for

levelling front and back yard and bobcat hire.

(u) Appendix 18 – report from Meekies Electrical & Data dated 8 October

2017 and receipt from Meekies Electrical & Data.

(v) Appendix 19 – letter to respondent from applicant dated 28 June 2017;

invoices AT84 Pty Ltd for materials and erection of single carport, colour

bond fencing and gate and flashing dated 18 September 2017 and

10 October 2017.

(w) Appendix 20 – Quotation from Detlev’s Appliance and Electrical Care

for removal and supply laundry cabinets and shelf; quotation from

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Cabinet Touch 1 November 2017 for supply of cabinet for washing

machine and dryer and door for bin cabinet and extra shelf.

(x) Appendix 21 – Statutory Declaration Anne-Maree Elizabeth Hevey

12 October 2017; email and letter from Independent Property

Management dated 18 October 2017; Letter from Luton Properties dated

23 October 2017; email from Element Property Services dated

24 October 2017 and copy of signed incoming condition report for 34A

Pambula Street, Kaleen.

25. At the hearing the applicant provided a copy of a quotation from Hood’s

Carpet Court dated 5 October 2017 and a series of emails between himself and

Access Canberra between 24 October 2017 and 25 October 2017 in relation to

the electrical work at his property. He also provided a copy of his letter to the

respondent dated 28 June 2017.

26. The applicant said he entered into various oral contracts with the respondent to

carry out the following work at the applicant’s property:

(a) Levelling of flooring in lounge and spare bedroom.

(b) Laying new bamboo flooring, replacing the skirting boards and repairing

any damages to match the rest of the wall.

(c) Removal of sliding door, installing new internal wall and external wall,

filling the gaps and painting walls to match.

(d) Repairs to laundry cabinet.

(e) Installation of dishwasher and adjustment of cabinet next to it.

(f) Engaging licenced electrician to install wiring for two wall lights and two

power points.

(g) Electrician to provide electrical certificate for installation of light fittings

and dishwasher.

(h) Levelling front and back yard, in preparation for concreting and paving.

(i) Purchase of materials and installation of carport.

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27. The applicant told the Tribunal that he was not pursuing recovery of damages

for the respondent’s work on the front door (refer Appendix 4 in [24g] above).

The respondent’s evidence and submissions

28. The respondent relied on the following documents filed on 26 October 2017:

(a) A statement including:

(i) Index to Response and Chronology of events Overview.

(ii) Chronology of events and “duties undertaken instructed by

M. Sadat and N. Bourbos.”

(iii) Response to photos in applicant’s Appendices 1F, 3A, 3B, 11B and

12A in relation to the levelling of the flooring.

(iv) Response to photos in applicant’s Appendix 2 – sliding door and

internal and external wall.

(v) Response to photos in applicant’s Appendix 4 – exterior door being

cut.

(vi) Response to photos in applicant’s Appendix 5 – rear yard before

and during landscaping.

(vii) Response to photos in applicant’s Appendix 6 – front yard before

and after excavation.

(viii) Response to photos in applicant’s Appendix 7 – carport and

documents from Still Standing Sheet Metal.

(ix) Response to photos in applicant’s Appendix 8 – installation of

flooring and skirting boards in dining and main bedroom.

(x) Response to photos in applicant’s Appendix 9 – laundry cabinet,

bin cupboard and kitchen cupboard.

(xi) Response to photo in applicant’s Appendix 14 – return of old

carport.

(xii) Response to documents in applicant’s Appendix 18 – electrical

work.

(xiii) Response to documents in applicant’s Appendix 21 – loss of rent.

(xiv) Respondent’s Optus accounts 24 April 2017 to 23 May 2017.

(xv) Two invoices from John Marich, Electrical Contractor dated 18 and

26 May 2017.

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(xvi) Statutory Declaration Kate Ninness dated 23 October 2017.

(xvii) Email dated 24 August 2017 from applicant to respondent’s

Attorney, Michael Ninness.

(xviii) Ten photographs relating to ‘start floor work’, ‘start wall/slide

door’ and ‘return old carport’

(b) The following documents which were attached to his response filed on

6 December 2017. Although these documents supported the respondent’s

counter-claim which was discontinued during the hearing, the Tribunal

has considered these documents as they also relate to the work the

subject of the application:

(i) Statement of the activities/tasks he was asked by the applicant to

work on, namely:

A. Level original floors and lay new flooring;

B. Remove sliding door and install new wall internal and

external;

C. Prepare front and rear yard for landscaping;

D. Extend existing laundry cupboard;

E. Remove existing cupboard to make room for dishwasher;

and

F. Electrician to install power points/lighting.

(ii) A chronology;

(iii) A summary of invoices rendered by him to the applicant and

copies of the invoices; and

(iv) Calculation of interest claimed.

29. The respondent provided references from Alam MJ Mirza 20 November 2017

and Stan Secko, Director, SPS Strategic Property Services (ACT) Pty Ltd

23 November 2017.

30. The Tribunal will first consider the evidence from the applicant and his witness

and the respondent in relation to the terms of the oral agreements between the

applicant and the respondent, then the applicant’s claim that the respondent’s

work was defective and that the respondent fraudulently ordered two carports

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instead of one carport on his partner’s credit card and, finally, the applicant’s

claim for damages in [22] above.

The agreements

31. Verbal agreements, including the agreed terms, are notoriously difficult to

prove which makes the enforcement of a verbal agreement time consuming and

challenging. 

32. There can be issues with the parties having different recollections of what was

agreed, or one party being untruthful and the tribunal having to weigh up the

word of one party against another.

33. While the applicant and the respondent gave different versions of their

discussion leading to them entering into the oral agreements, the Tribunal is

satisfied and finds that there was an oral agreement between the parties in

relation to the floor levelling and further oral agreements for the other work the

subject of these proceedings. The respondent rendered invoices to the applicant

for his work. The applicant paid the respondent cash amounts during the time

the respondent was working for him and the respondent recorded these

payments on his invoices.

34. While the applicant alleged that the respondent had raised further work needing

to be done while he was working at the applicant’s property and the respondent

alleged it was the applicant asking and directing him to do the further work, the

Tribunal is satisfied that it does not matter who initiated the discussions.

35. Having considered the evidence, the Tribunal is satisfied and finds that as the

respondent was working for the applicant, at times the respondent advised the

applicant that other work needed to be carried out and at other times the

applicant asked the respondent if he was able to do other work for him.

36. Relevantly, for this matter, the Tribunal is satisfied and finds that the parties

entered into separate oral agreements for each of the jobs. Sometimes the

respondent was working on more than one job for the applicant. The

respondent had a running tab. The respondent prepared invoices from time to

time although it appears that he did not deliver them to the applicant until the

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applicant had terminated his work. Apart from the invoice for levelling the

floor in the lounge and spare bedroom the invoices were not separate task

specific invoices.

37. During the hearing the parties did not agree on the actual terms of the work the

respondent was to undertake in relation to the floor levelling, or the painting

and patching of the holes in the bedroom walls caused by the respondent

removing the floorboards, or the scope of the electrical work, or the scope and

duration of the work to the front and back yards, or the removal and purchase

of a double carport or the damage to the laundry cabinet and the outstanding

kitchen work. The applicant alleged and the respondent denied that the

applicant had told him he wanted to finish the various works as soon as

possible in order to rent the property.

38. The Tribunal will consider the conflicting evidence in relation to each of these

claims.

39. The respondent worked at the applicant’s property from 15 May 2017 to

around 22 June 2017.

Levelling of flooring and laying bamboo flooring

40. The applicant told the Tribunal that Kashan had not properly levelled the

cement slab under the floor in the lounge and spare bedroom in 2015. In May

2017 he invited the respondent to look at the floor. When the respondent

looked at the floor the applicant asked him if he was able to do this work. The

respondent said the floor was capable of being levelled and he would provide

the material to level it and lay the new boards provided the applicant bought

the bamboo flooring, underlay and skirting boards.

41. The applicant said the parties then entered into a verbal agreement that the

respondent would carry out this work and charge $25m² to lay the new floor

boards, which was to total $1,250, and up to $500 to level the surface before

the floorboards were laid. The applicant’s partner, Ms Boubous, said she was

present when the amount of $500 was agreed for the levelling. She said the

other charge was worked out between the applicant and the respondent. The

applicant said that they had not discussed how many hours or days the work

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would take “because it was paid on per job. He quoted me for that amount so

whether it took him an hour or whether it took him five hours he was paid per

that job.”2

42. The respondent said that when he looked at the cement slab which had been

laid by Kashan in 2015 he could see it was poorly laid with large variations and

he could only provide an estimate for the work the applicant was asking him to

do. He said he had suggested jackhammering the worst parts of the slab and

virtually starting again. He claimed that the applicant and his partner then

requested ‘just please do whatever is possible for the least amount of money’

which he took to mean they were only to pay for his time at $300 to $350 a

day. He claimed that this formed the basis of their agreement and his part was

“to do his best to rectify the slab levels before laying the floor covering.” He

agreed that there was no discussion between the parties in relation to how long

this job would take. The respondent also said that the agreement did not

include him laying the skirting boards as he understood the applicant was to be

using scotia.

43. The applicant provided the respondent with a key to his property so he could

undertake the work while the applicant and his partner were at work.

44. Notwithstanding the respondent’s claim that he told the applicant that he

‘would do his best’ the Tribunal is satisfied and finds that it was implicit in the

parties’ agreement that the respondent would carry out the work using

reasonable care, skill and diligence, that it would be completed in a

workmanlike manner and, when completed, the work would be reasonably fit

for its intended use.

45. The respondent had three attempts at levelling the flooring. On the first

occasion, the respondent had told the applicant he would use a self- levelling

agent describing it “as an easy job” and said “he would use a stick to level it”.

He removed the lounge room and spare bedroom floor boards and laid the new

floor boards while the applicant was at work.

2 Transcript of proceedings 8 January 2018, page 18 lines 43-44; page 19 lines 1-2

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46. The applicant said that the newly laid floorboards were neither flush nor level

and when he raised this with the respondent the respondent said to give the

flooring two weeks to settle as it was bamboo flooring. He recommended that

the applicant place something heavy on the new flooring. The applicant moved

furniture from the main bedroom and the dining room onto the new floor.

47. Two weeks later, after returning the furniture to the main bedroom and dining

room, the applicant discovered that the new flooring was not level. When these

floorboards were subsequently pulled up the applicant said that he saw that no

levelling agent had been used; instead the respondent had laid the new bamboo

flooring on the original cement base. When this was raised with the respondent

the applicant said the respondent offered to give the applicant $500 back.

48. The applicant said he had told the respondent in the beginning, May 2017, that

he “had found certifiers. The building and planning application has gone

through. I’m trying to obviously finish these to finish them off and get the

place ready for rent. I need the floors done.”3 When he discovered that the new

floorboards were not level after the first attempt the applicant said he stated to

the respondent that he was on a timeline and would not be able to find another

contractor in time and the respondent had then said to the applicant that “he

will fix it.”

49. The Tribunal noted that the invoice which the respondent rendered for this

work, Number 688462 and dated ‘15-05-17’ stated ‘Level Floor 500 Install

Floor Bamboo 1,250’. The Tribunal is satisfied and finds that this invoice

corroborates the applicant’s evidence of the price agreed between the parties

for this work. The Tribunal rejects the respondent’s evidence where it conflicts

with the applicant’s evidence in relation to the consideration to be paid for the

floor levelling and laying of bamboo flooring.

50. As stated above, the applicant alleged that the respondent had not used a

levelling agent on his first attempt to level the flooring. The respondent alleged

he had ground some of the existing slab between the kitchen area and the

lounge and that he laid the first batch of self-levelling cement on the areas

3 Transcript of proceedings 8 January 2018 page 12 lines 17-19

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where the extension joined with the old part of the building. He said he then

laid the new underlay and bamboo flooring from the kitchen to the lounge area

and in bedroom two. He agreed that the applicant was not happy with the

flooring.

51. The applicant said that he did not see any evidence of the respondent having

used the self-levelling agent in his first attempt at levelling the floor and relied

on the photos he had provided to the Tribunal to verify this. He also told the

Tribunal that, unlike after the respondent’s second attempt to level the floor,

the respondent had not advised him and his partner after the respondent’s first

attempt at levelling the floor that they could not walk on the floor and they had

to vacate the property for 24 hours.

52. The applicant said when the respondent told him he had to leave the property

for 24 hours after the second floor levelling attempt, when the self-levelling

agent was used, this confirmed for him that the respondent had not used the

self-levelling agent on his first attempt at levelling the floor.

53. On the second attempt to level the flooring the applicant said he had observed

that the respondent had only applied the levelling agent to a part of the floor.

Accordingly, he had asked the respondent if the flooring was now going to be

level, to which the respondent said “yes”. The floorboards were then laid. This

time the respondent used a laser to measure the level which showed that there

was a dip in the middle of the lounge room floor which measured 60cm by

30cm.

54. When the applicant saw the flooring after it had been relaid he told the

respondent he was not happy that the flooring was still not level. He said he

could see that the slant was still there. The respondent recommended giving the

new flooring a week to settle. After the week passed the applicant told the

respondent he still had issues with the level of the flooring and questioned why

the respondent had only levelled half of the room. The respondent told the

applicant he had applied more levelling agent later and “had worked hard”.

55. The parties agreed that the flooring was still not level.

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56. The respondent came back a third time in early June 2017, took up the

floorboards, applied more levelling agent and laid the floorboards. The

applicant said that he had paid for more bamboo flooring in May and June

2017 to replace the flooring which had been laid and had to be pulled up. He

relied on the Bunnings receipts dated 31 May 2017 ($61.30) and 15 June 2017

as evidence of these payments.

57. After the respondent’s third attempt the flooring was still not level. The

applicant told the Tribunal he was unhappy that the respondent had not used

the self-levelling agent across the entire slab. The respondent acknowledged

that the applicant had asked him to pour self-levelling cement across the entire

slab. However, he said that the self-levelling cement could only help by 5 to 10

mm at best and no matter how many times he repeated the process the

applicant would only see incremental improvements.

58. The respondent’s evidence in relation to whether or not he applied self-

levelling cement and how much he applied was confusing and unsatisfactory.

His evidence in relation to his claim that the agreement only required him to do

his best to rectify the slab level was not convincing. As a tradesperson he must

warrant that his work has been carried out with due care and skill.

59. Where the evidence of the applicant and the respondent conflicted the Tribunal

had no hesitation in preferring the applicant’s evidence. It was given in a

forthright and open manner and it was corroborated by his photographic

evidence. In contrast, the Tribunal found the respondent’s evidence to be

unreliable and is unable to attach any or any significant weight to his evidence.

60. Notwithstanding that the respondent conceded that the floor was still not level

he submitted that the present flooring was reasonable and acceptable and

pointed out that the applicant has rented the property with the flooring as it was

left in June 2017.

61. While the applicant conceded that he had rented the property with the flooring

as it was left in June 2017, he disputed that the levelling and flooring carried

out by the respondent was ‘reasonable and acceptable’. He said that the

respondent had not carried out the work with reasonable care, skill and

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diligence and in a workmanlike manner. The applicant submitted that the fact

the respondent had not used the levelling agent at all during the first attempt at

levelling the floor boards, when he had represented that he would use it, and

that he had not covered the whole area with the self-levelling agent in the

subsequent attempts supported this submission.

62. Having considered all of the evidence, the Tribunal is satisfied and finds that

the agreement between the parties was for the respondent to level the floor, not,

as alleged by the respondent ‘to do his best’. The respondent agreed that the

floor was not level after his third and final attempt. The Tribunal finds that the

flooring was not carried out with reasonable care, skill and diligence, that the

work was defective and that the respondent has breached the terms of the

contract with the applicant.

63. Is the applicant entitled to damages for the respondent’s failure to level the

flooring?

64. In Tabcorp Holdings Ltd v Bowen Investments Pty Ltd4 (Tabcorp Holdings)

the High Court referred to the ruling principle with respect to damages at

common law for breach of contract as that stated by Parke B in Robinson v

Harman5:

The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.6

65. In Tabcorp Holdings at [15] the High Court also referred to the statement made

by Dixon CJ, Webb and Taylor JJ in Bellgrove v Eldridge7 (Bellgrove). In

Bellgrove a builder who had built a house which, in breach of contract,

contained defective concrete and mortar contended that the measure of

damages was limited to diminution in value and did not extend to costs of

rectification. Their Honours said8:

4 [2009] HCA 85 (1848) ER 363 at 3656 [2009] HCA 8 at [13]7 (1954) 90 CLR 613, 6178 At [20]

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In the present case, the respondent was entitled to have a building erected upon her land in accordance with the contract and the plans and specifications which formed part of it, and her damage is the loss which she has sustained by the failure of the appellant to perform his obligation to her. This loss cannot be measured by comparing the value of the building which has been erected with the value it would have borne if erected in accordance with the contract; her loss can, prima facie, be measured only by ascertaining the amount required to be rectify the defects complained of and so give to her the equivalent of a building on her land which is substantially in accordance with the contract.

66. The Tribunal is satisfied and finds that the applicant has sustained a loss by

reason of the respondent’s breach of the contract. The applicant is, as far as

possible, to be put in the position he would have been in had the agreement

with the respondent been performed.

67. The applicant subsequently obtained quotations from Floorworld ($6,690

including removing flooring - $900 and levelling - “around $900”) and Carpet

Court ($5,582 which includes taking up and taking away floor laid by

respondent - $909 and additional floor prep area over two areas - $910) for the

flooring to be redone. These quotations included the lounge and bedroom

where the respondent had agreed to level the floor as well as another bedroom

and dining room.

68. The applicant is claiming damages of $1,000 for this defective work. This

amount is less than the amounts quoted in the previous paragraph to remove

flooring and levelling. As the work the subject of the two quotations included

an extra bedroom and dining room, which were not included in the agreement

between the parties, the Tribunal is satisfied and finds that the amount of

compensation to be paid by the respondent is $1,000. This represents

approximately half of the quoted costs for removing the existing bamboo floor

boards and levelling the floor and includes the amounts which the respondent

paid to Bunnings in May and June 2017 for the bamboo floorboards which

have been laid and will be pulled up.

18

Repairing any damages to match the rest of the wall

69. The applicant told the Tribunal that each time the respondent removed the

skirting boards, three times in all, he put holes in the bedroom wall and that the

respondent agreed to repair the holes and to repaint the wall. He said the

respondent had tried to patch the holes up and he put on a layer of undercoat.

He said the respondent had not sanded these areas or repainted the wall to

match the rest of the room. Further he has only painted a strip in undercoat

above the skirting boards. The applicant said that the agreed cost of this work

was included in the $1,500 for removing the sliding door in the bedroom and

repairing the interior and exterior wall where the sliding door had been.

70. The respondent disputed that he agreed to repaint the wall.

71. The Tribunal will consider this claim for damages with the next item.

Removal of sliding door, installing new internal wall and external wall

72. The applicant said that when the respondent removed the old flooring from the

spare bedroom the respondent told him that the sliding door in the bedroom

was not sealed properly, that moisture was coming in and that this may lead to

problems with the foundations. He was adamant that the respondent initiated

this conversation.

73. The respondent told the Tribunal that the applicant had initiated the discussion

about the sliding door as he had asked his opinion about making the room with

the sliding door more useable. He said that moisture damage was never

discussed.

74. The Tribunal is satisfied that irrespective of who initiated the discussion about

the sliding door, the parties entered into an oral agreement to have the sliding

door removed and for the wall to be ‘made good’. The respondent offered two

options – either replacing the sliding door or removing the door and closing the

gap where the door had been in the wall. The applicant told the respondent he

wanted the quicker option because, as he had told the respondent a number of

times that he was getting the property ready to rent,9 and he was in the process

9 Transcript of proceedings 8 January 2018, page 20 line 3

19

of getting the place ready for approval.10 The respondent recommended and the

applicant accepted the second option – removing the sliding door and closing

the gap in the wall.

75. When the applicant asked for a “ball park figure for removing the sliding door

and patching up the wall” the applicant said the respondent took a day or two

to price the work. He orally quoted $1,500 which included the respondent

using the materials which were left over from previous jobs. He said the

respondent offered to provide these materials to keep the costs down. The

applicant said this was a job specific quote and he accepted the offer. This

amount is confirmed in the respondent’s invoice 688465 dated 31 May 2017

for $1,500 which the applicant has paid.

76. The parties were in dispute as to whether this quotation for $1,500 included the

painting of the wall. The applicant said painting of the wall where the sliding

door had been was included in the $1,500. The applicant said that the

respondent had told him that he had been in the industry for approximately

30 years, was an all-rounder11 and “could do the sliding door”.12 Therefore, he

assumed that the respondent had factored all necessary work into the quotation

and this work would include the respondent making good the gap in the wall by

installing and painting the new interior and exterior walls.

77. As stated above, the respondent said his estimated price did not include

painting inside or outside. His quotation had been to install the timber stud

wall, the gyprock and to apply a base coat ready for preparation for painting.

He said, when he told the applicant this, the applicant said “don’t worry about

the painting, I can do it myself.”

78. However, the applicant also told the Tribunal when he asked the respondent

when he was going to paint the wall the respondent said he would wait until all

of the flooring was completed and that it was not until later that the applicant

said the respondent told him the painting was not included.

10 Transcript of proceedings 8 January 2018, page 19 line 4011 Transcript of proceedings 8 January 2018 page 21 line 3712 Transcript of proceedings 8 January 2018 page 22 line 1

20

79. After further discussions the applicant said that the respondent said if the

applicant purchased the matching paint he was willing to paint the new internal

wall for free and he agreed to apply an undercoat anyway. The respondent

alleged that the applicant did not provide the matching paint so he did not paint

the internal wall. However, the applicant provided the Tribunal with a copy of

his Bunnings receipt dated 4 June 2017 evidencing his purchase of four litres

of interior paint, turpentine and various painting items.

80. The respondent alleged that he had plastered and sanded the walls and had

applied an undercoat. The applicant said that the respondent only applied the

undercoat to the skirting boards and just above the skirting boards, describing it

as a “strip around all walls”. He did not apply an undercoat to the whole of the

internal wall. The applicant’s photographs corroborate his evidence.

81. Having considered all of the evidence, the Tribunal is satisfied and finds that

the agreement included the respondent painting the new internal bedroom wall

as he had agreed to make good where the sliding door had been located in the

wall. If, however, this finding is in error the Tribunal is also satisfied that the

agreement was varied by the parties to provide that the applicant would provide

the paint and the respondent would carry out the painting. The applicant

provided the paint. The respondent did not complete this work. The applicant is

entitled to damages for this incomplete work.

82. The applicant provided two quotations to the Tribunal in support of this claim.

The quotation from Superb Services dated 17 September 2017 to repaint the

walls and skirting boards in the lounge and one bedroom and one cladding wall

totalled $1,500. The second quotation from CG Home Maintenance Services

dated 10 August 2017 totalled $12,084. It appears that this quotation, which

was barely legible, included ceilings, doors, walls, window and door frames,

skirting board, eaves and exterior wall. It does not assist the Tribunal to

determine the amount required to complete the outstanding work.

83. The Tribunal determines that the amount to be paid to compensate the

applicant for the respondent’s outstanding work should not include the cost for

painting the lounge room walls, the skirting boards in the lounge room, the

21

cladding wall and the walls in the spare bedroom other than the one wall where

the door had previously located. Doing the best it can with the available

evidence the Tribunal assesses the damages payable by the respondent at one

sixth of the cost quoted by Superb Services, $275.

Works to laundry and kitchen

84. The applicant told the Tribunal that the laundry doors were not sitting flush as

the cabinet that Kashan had built was not deep enough for the washing

machine and he had asked the respondent “if he would actually just move the

hinges back a bit which would actually essentially give the cupboard a bit more

room and, therefore, the doors would actually close flush.”13 He said he asked

the respondent if he could do that and the respondent said “Yes. No problems.

I’m able to do that.”14

85. The applicant denied in cross examination that the respondent had said to him

‘once you cut the laminate you can’t adjust a hinge. If you cut it it’s cut.

They’re a sealed unit.’15 The respondent alleged that he told the applicant that it

was not possible to move or replace the hinges and suggested fixing the back of

the cupboard which, he claimed, had already been cut by a previous builder.

The applicant denied that the back of the cupboard had been cut previously.

86. The work in the laundry included closing off the open space above the laundry

cupboard doors. The respondent agreed that he was asked to do this work but

alleged that there was never any discussion that he use a similar material to the

cupboard doors, which had a white gloss finish. He said he offered to extend

the top of the cupboard which would take him a day for which he would charge

$300 and he offered to pay for materials. He said the applicant accepted his

offer.

87. When the applicant saw the respondent’s work to the laundry cabinet he

observed that the hinges had not been moved as requested and that there was “a

hole cut in the back wall of the cupboard which had red bog painted around it.”

The applicant told the Tribunal that he had not asked the respondent to cut into

13 Transcript of proceedings 8 January 2018 page 73 lines 14-1614 Transcript of proceedings 8 January 2018 page 73 line 2415 Transcript of proceedings 8 January 2018 page 73 lines 26-27

22

the laminate at the back of the cupboard; rather the respondent had taken upon

himself to cut the back of the cupboard.

88. The respondent alleged that there were cuts in the back of the existing

cupboard which “he made a little bigger in order to fit the washing machine.”

He conceded that he patched the back of the cupboard with builder’s bog filler

which he said was better suited to use in a wet area and “as it was inside the

cupboard the join would not look as bad.” He alleged that the applicant was

happy with the work “taking this direction.”

89. The respondent used material with a matte finish to enclose the area above the

cupboard. This material did not match the material in the existing cupboard. It

also did not match the walls. The wall the respondent built was not flush with

the existing wall. It has a gap of one centimetre to the interior of the laundry.

90. The respondent was aware that the applicant was unhappy with the work he

had carried out in the laundry. He told the Tribunal that the applicant did not

ask him to finish the laundry cupboard; he said each time he offered to

complete the work the applicant redirected him to another task.

91. The applicant said the respondent was also asked to install a door to the bin

cupboard in the kitchen, remove an existing cupboard to install a dishwasher,

to cut back and fit the old cupboard door to remaining cupboard space not

utilised by the dishwasher in order to create a smaller cupboard and to install a

new shelf in the new cupboard.

92. The respondent denied that he was asked to install a door to the kitchen bin

cupboard but agreed that he had agreed to remove an existing cupboard to

make room for the dishwasher and at the same time make a small cupboard

next to the dishwasher. He estimated this work would take one day at a cost of

$300 for the day.

93. The respondent subsequently invoiced the applicant $600 for “fixing kitchen

and laundry on 22 and 23 May 2017.”16

16 Invoice 688463 dated 28 May 2017

23

94. The Tribunal is satisfied that the respondent sourced and installed the

dishwasher. He did not install the door to the bin cupboard, or install the shelf

in the cupboard adjoining the dishwasher.

95. The Tribunal has seen the witnesses and considered their documentary and oral

evidence. The applicant provided photographs of the laundry cupboard before

and after the respondent had undertaken this work. The photographs show the

sloppily applied red builder’s bog. The damage to the inside of the cupboard is

not only unsightly but demonstrates that the respondent’s work was not carried

out using reasonable care and skill. The applicant’s photos also showed where

the respondent had carried out work to the top cupboard there were now

numerous chips in the existing laminate on the inside of the cupboard. This,

the Tribunal finds, is further evidence that the respondent’s work was not

carried out using reasonable care and skill.

96. Where the evidence of the applicant differed to that of the respondent the

Tribunal had no hesitation in accepting the applicant’s evidence.

Notwithstanding quite intense cross examination the applicant’s evidence did

not waver. It was credible and corroborated by the photographs and the

documentary evidence. In contrast the respondent’s evidence was difficult to

follow and confusing. It lacked credibility.

97. The Tribunal is satisfied and finds that the respondent damaged the laundry

cabinet, the damage is not able to be reasonably repaired and the resulting loss

to the applicant should be rectified.

98. In determining the quantum of damages for the respondent’s unsatisfactory

work the Tribunal is satisfied that the laundry cabinet should be replaced. The

applicant is seeking $1,500 to replace the laundry cabinet. The two quotations

which the applicant provided to the Tribunal exceed this amount. Cabinet

Touch’s quotation, including the door for the kitchen bin cabinet and extra

shelf, totalled $2,387.10 inclusive of GST. Detlev’s quotation including GST

was $2,125.20. In these circumstances the Tribunal is satisfied that the sum of

$1,500 sought by the applicant is fair and reasonable for the damage caused by

the respondent.

24

Electrical work

99. The applicant told the Tribunal that he had told the respondent, when the

plaster was being installed in the bedroom where the sliding door had been

removed, that he was looking for a licensed electrician to install wiring for wall

lights to be installed in the bedroom and to install two power points, one power

point in the bedroom and the other in the kitchen. The applicant also told the

respondent he needed an electrical safety certificate for the electrical work

because any additions to the renovation need the certificate.

100. The respondent said he agreed with the applicant to source an electrician to

install the power points and the light switches and to pass on the costs to the

applicant with no additional margin for himself.

101. It was not in dispute that the applicant had previously told the respondent that,

under no circumstances, were any Kashan employees or principals to work on

his property. The applicant said the respondent told him he would contact an

electrician and he would not be using anybody from Kashan.

102. Subsequently the applicant became aware that a Kashan van had been seen

outside his property when the electrical work was carried out. He said he asked

the respondent why that van was outside his house and who had undertaken the

electrical work. The respondent told the applicant that the Kashan employees

were only providing materials and he, the respondent, had conducted the

electrical work. When the applicant asked the respondent if he was a certified

electrician, the respondent had replied “no” and then said that Ramon, a

Kashan employee and an electrician, had conducted the electrical work

contrary to the applicant’s instructions.

103. However, he told the Tribunal that he arranged for a friend of Ramon’s, John

Marich, who was a licensed electrical contractor, to carry out this work on

18 May 2017. He provided copies of the two invoices John Marich had

rendered to him for the electrical work at the applicant’s property.

104. He said John Marich had informed him that the electrical work he had

undertaken did not require a ‘Notification of Electrical Work’. John Marich

had invoiced him $200 to install the two power points and $250 to install the

25

light switches. On 28 May 2017 the respondent invoiced the applicant for $200

and $250 which the applicant paid. The respondent did not provide the

applicant with a copy of John Marich’s invoices.

105. The respondent said John Marich only installed the wiring for the lights in the

bedroom as required by the applicant; he did not install the lights. He said John

Marich had told him he could not provide the electrical safety certificate for the

lights because he had not completed them. The respondent said that John

Marich had told him he could only provide an electrical safety certificate for

the power points and preferred to issue both certificates at the same time.

106. The respondent told the Tribunal that the invoice from Cameron Meek

included “replacement of faulty lamp holders” which was not part of the agreed

work. This is not in dispute.

107. The applicant said that he did not know that the respondent had used John

Marich as the electrician as he did not provide this information to him. When

he became aware that the respondent was asserting that an electrical safety

certificate was not required the applicant said he emailed

Electrical.Inspections@act.gov.au in October 2017 and was advised by email

that Cameron Meek had submitted a certificate of electrical safety on 12 July

2017 and that John Marich had submitted no documentation for the applicant’s

block and section number. The applicant then asked Electrical Inspections in an

email “…if any new electrical works were undertaken by John Marich at my

property then an electrical safety certificate should have been supplied to

Access Canberra, is this correct?”17 Electrical Inspections advised the applicant

“That is correct”.18

108. The applicant also said that when the respondent failed to provide the electrical

safety certificate, notwithstanding the applicant’s numerous requests, the

applicant arranged for another electrician, Cameron Meek, to test and

commission the electrical work the respondent had arranged.

17 Appendix 18 in applicant’s 5 December 2017 documents - email from the applicant to Electrical Inspections dated 24 October 2017

18 Appendix 18 in applicant’s 5 December 2017 documents - email from Electrical Inspections to the applicant dated 25 October 2017

26

109. The applicant provided the Tribunal with a copy of the report from Cameron

Meek in which he identified the following issues he found on testing: (i) the

light circuit had been added to and a Residual Current Device (RCD) was not

installed; (ii) The power circuit that was added to had an RCD installed but was

faulty and would not trip once tested; (iii) there was no main switch on the

switchboard which meant that no work could be carried out on any part of the

switchboard without getting ACTEW AGL attending and pulling the service

fuse to the house; (iv) No earth stake was installed and (v) the bedroom wall

lights had faulty lamp holders and needed replacing. Mr Meek rectified each of

these issues, applied for and obtained the Certificate of Electrical Safety and

rendered an invoice to the applicant for $540. The applicant seeks that this

amount be included in the damages which the respondent has to pay.

110. Once again, the Tribunal found the respondent’s evidence confusing. It was not

readily apparent why he had told the applicant that he had carried out the

electrical work himself when he was not a qualified electrician and then stated

that Ramon did the electrical work when he knew Ramon was an electrician

who had worked for Kashan and that the applicant had stated that no

employees of Kashan were to do any work at his property.

111. While the respondent told the Tribunal that John Marich had carried out the

work and it was in accordance with the AS3000 he did not provide a report or

witness statement from John Marich or call him to give evidence at the

hearings.

112. The Tribunal is satisfied that a fundamental term of the agreement between the

parties was that the respondent would obtain a Certificate of Electrical Safety

from the electrician after the electrical work had been completed and provide it

to the applicant. The respondent failed to do this. In not doing so he has

breached a fundamental term of the contract.

113. Having considered all of the evidence, particularly Cameron Meek’s report,

which apart from the inclusion of a charge of $75 for replacement of faulty

lamp holders in the bedroom, was not credibly challenged at the hearing, the

Tribunal is satisfied and finds that the respondent also failed to adhere to his

27

part of the agreement, namely to arrange for the electrical work to be carried

out with proper care and skill. In reaching this conclusion the Tribunal was

persuaded by Cameron Meek’s report and the list of the defects he identified in

that report.

114. The Tribunal finds that the respondent is liable to compensate the applicant for

his loss incurred in paying the invoice from Cameron Meek for the electrical

work, not including the charge of $75 for replacement of faulty lamp holders in

the bedroom, he carried out to rectify and complete the electrical work which

the respondent had agreed to arrange for the applicant. The respondent is to pay

the sum of $465.

Levelling front and back yard

115. The applicant told the Tribunal that sometime between 17 and 19 May 2017 he

had had a discussion with the respondent about upgrading his front and back

yards. In this discussion he asked the respondent if could recommend anyone

to do this work. The applicant said the respondent said that he had done a few

jobs and he could do that for a good price. He also said he knew a highly

experienced bobcat operator who could get the task done in one day and would

charge $600. The respondent said if he assisted the bobcat operator he would

charge for his fees. The applicant said they reached an agreement that the

respondent would engage the bobcat operator for the whole day for $600 and

the applicant, his partner and her father would also assist so that the work did

not exceed one day.

116. The respondent said that the applicant’s partner had shown him a plan of the

backyard with two levels, a retaining wall and steps and he agreed to prepare

the backyard in accordance with the plan.

117. The respondent agreed to speak with his contact, Zoltan, who owns and

operates a bobcat, about clearing and levelling the front yard with the bobcat as

it would be faster and, therefore, cheaper. The respondent said he gave the

applicant a price of $1,000 which included the hire of the driver and the bobcat

for one day and this was the basis on which the work proceeded.

28

118. The respondent said he and Zoltan estimated the work would take a day of

Zoltan’s time, but due to the limited access they would need to hire a smaller

machine and it would take an extra day for the work in the front yard.

119. The respondent also said that part of his agreement with the applicant was that

any excess soil would be placed at the front of the property and he would

remove it later at the applicant’s cost. The applicant disagreed. He told the

Tribunal that the respondent had said that he regularly went to the tip and

offered to move the soil and green waste slowly without charge on his future

trips to the tip, which the applicant accepted, provided it was removed between

9am and 5 pm. The Tribunal noted that the applicant was also dumping broken

cement from the backyard in the front yard and that this, too, needed to be

taken away. The respondent subsequently charged and the applicant has paid

the respondent to remove the soil and the cement. The Tribunal is satisfied and

finds that this corroborates the respondent evidence that he would charge to

remove the soil and cement from the front yard.

120. The respondent and Zoltan arrived at the applicant’s property at 8am on

27 May 2017. The applicant observed Zoltan removing stumps and showing

the respondent how to use the bobcat. He said Zoltan then left at 10am and did

not return until he collected the bobcat on 29 May 2017. After Zoltan left, the

applicant saw the respondent driving the bobcat backwards and forwards. It

seemed to the applicant that the respondent was getting used to driving the

bobcat. Around 11am the respondent told the applicant the bobcat had run out

of fuel and he would have to go to Mitchell to get the fuel. Although Mitchell

was 10 minutes from the applicant’s property, the applicant said the respondent

did not return until around 12.30pm. He stayed at the applicant’s property until

1.30pm and then requested to go on a break. He did not return until 3.30pm and

left the applicant’s property that day around 5pm.

121. The applicant said Zoltan only worked two hours instead of the whole day as

agreed and the respondent worked a total of about five hours on 27 May 2017.

The respondent alleged Zoltan drove the bobcat for six hours on the first day,

27 May 2017. Although the applicant, his partner and her father were also

29

working there breaking up cement and dismantling a shed and taking it to the

front of the property, the backyard was not completed that day.

122. The respondent said, after they had stopped work on 27 May 2017, the

applicant changed his mind about the backyard and stated he now wanted it to

be level rather than split levelled. He agreed to level the yard for an extra $300.

123. The respondent returned on 28 May 2017. Zoltan did not return on 28 May

2017. The applicant, his partner and her father and the respondent continued to

work at the property on this day and still did not finish the clearing and

levelling.

124. The respondent said that he and Zoltan worked on the applicant’s front yard

together on 30 May 2017 removing bushes and soil that had been placed out

the front from the work carried out on 27 and 28 May 2017. He said that they

removed two truckloads of soil and one load of concrete and the following day

Zoltan worked for four hours finishing levelling the front yard and removing

two truckloads of soil.

125. The applicant said that the agreement had been that the work would take one or

two days. The Tribunal is satisfied that this agreement was corroborated by the

respondent’s evidence. The reality is that the respondent and/or Zoltan returned

to the applicant’s property and worked there for two more days and the

respondent charged the applicant $3,540 for a total of four days plus tip fees

which had not been included in the quotation. The applicant has paid this

amount. He is not seeking the respondent refund any of this amount.

126. However, the applicant said that the respondent did not finish levelling the

front and back yards and that he had subsequently engaged another contractor,

JB Slab Pty Ltd, to finish levelling the yard. He paid JB Slab Pty Ltd $990 and

seeks to recover this amount from the respondent.

127. The respondent told the Tribunal that the applicant had been very happy with

his and Zoltan’s achievements at the end of 28 May 2017 and he was not aware

that the applicant had an issue with the work until he received the application

in these proceedings.

30

128. The Tribunal was troubled by the respondent’s evidence in relation to the

landscaping. At times it was difficult to follow. It transpired that his Response

dated 23 October 2017 had been written by his daughter in English, she said

after trying to interpret what she was typing in Macedonian with her father.

While the respondent had signed the Response he had, apparently, not read it.

When giving evidence he disagreed with some of the statements in the

Response attributed to him.19

129. Where the evidence of the applicant and the evidence of the respondent

conflict, the Tribunal had no hesitation in accepting the applicant’s evidence

for the same reasons as set out in [96] above.

130. Having considered all of the evidence the Tribunal is satisfied that the parties’

agreement was for the levelling work to be completed in one or two days, not

for a longer period. While the applicant paid the respondent for the four days of

work the respondent claimed and is not seeking a refund of any part of that

payment, the Tribunal finds that the respondent failed to finish the levelling

work the subject of the parties’ agreement. Therefore the Tribunal finds that,

when the respondent ‘finished’ his part of the agreed work, it was not then

reasonably fit for its intended use. The applicant has incurred costs of $990 in

completing the work the subject of the parties’ agreement. The Tribunal

accepts the applicant’s evidence that the rectification work was necessary to

put the applicant in the position he would have been had the work the subject

of the contract with the respondent been completed.

131. The applicant’s loss of $990 is payable by the respondent.

Purchase of materials and installation of carport

132. A lot of time was taken up at the hearing in relation to the circumstances

leading to the applicant agreeing to the respondent ordering a double carport to

replace the single carport at the property. It is not necessary for the Tribunal to

consider this evidence as the parties reached an agreement to resolve the

payment for and ownership of the double carport during the hearing. The

Tribunal will return to this agreement below.

19 Transcript of proceedings 8 January 2018, page 94 lines 1-36

31

133. It is, however, necessary to set out the evidence and the Tribunal’s findings in

relation to the respondent’s discussions with the applicant in relation to the cost

of the double carport and the actions of the respondent that took place on 24

May 2017 when he ordered the double carport which was paid for by the

applicant.

134. It is not in dispute that the parties agreed that the respondent would source the

double carport, take down the single carport and erect the new double carport

and the applicant would pay for the double carport materials. The respondent

said that he told the applicant that the materials came to a price of $2,000 and

his labour, allowing approximately four days, would be $1,500.

135. The applicant told the Tribunal that the respondent had initially told him that

the material for the carport would cost approximately $1,500 and that he

subsequently said that he had underestimated the cost of the material, the prices

had gone up and the cutting for a custom carport incurred an additional fee.

136. The respondent attended Still Standing Sheet Metal (SSSM) in Fyshwick on

24 May 2017 for the purpose of ordering the material for the double carport.

He placed the order and spoke with the applicant’s partner who, after

confirming the cost with the SSSM sales person, authorised the payment of

$3,502.19 on the applicant’s credit card. The order which the applicant placed

with SSSM was for a single carport and a double carport.

137. The applicant’s partner said she had called the applicant after she had made the

payment as she thought it was expensive for a double carport. A day or two

later she called SSSM to see if she could cancel the order and obtain a refund.

She was not able to cancel the order and obtain a refund as SSSM had started

cutting the materials.

138. The applicant said that at no time was he aware that the respondent had, in fact,

ordered and his partner had paid for two carports, a single carport and a double

carport, from SSSM. The applicant’s partner discovered this on 14 June 2017

when Stan from SSSM contacted the applicant’s partner and informed her that

the respondent had telephoned SSSM and asked the whereabouts of one of the

carports which he had, in the order, requested be delivered to Lyneham.

32

139. Stan confirmed with the applicant’s partner that the respondent had ordered

two carports for two different addresses, neither of which was the applicant’s

address. He invited the applicant’s partner to attend SSSM and look at the

order placed by the respondent.

140. The applicant’s partner attended SSSM and looked at the invoice which stated

that carport 1 (a single carport) was to be delivered to an address in Lyneham.

The quote for this carport was $1,566.73. Carport 2 (a double carport) was to

be delivered to the respondent’s address in Kaleen. The quote for this carport

was $1,935.46. Notwithstanding the applicant said he had requested that the

respondent provide him with copies of each receipt for expenses incurred while

working at the applicant’s property, he had not provided a copy of the SSSM

invoice or receipt to the applicant. He only provided the applicant with a copy

of the EFTPOS printout.

141. The applicant’s partner said once Stan had confirmed that she was unaware that

the respondent had ordered two carports he advised her SSSM would hold all

materials until further notice.

142. Approximately two weeks later the applicant’s partner requested SSSM deliver

carport 1 to the applicant’s address in Kaleen. Carport 2 remains at SSSM.

143. In an email to the applicant dated 5 December 201720 the manager of SSSM,

Duane O’Hare, confirmed the respondent’s placing of the order for two

carports for two different addresses, the applicant’s partner’s payment, her

subsequent call to see if she could cancel the order, the respondent asking for

one of the carports to be delivered to a Lyneham address, SSSM advising that

they could withhold all materials until further notice and the applicant’s partner

subsequently requesting that the single carport be delivered to the applicant’s

address in Kaleen which was a totally different address to those given

originally by the respondent and that SSSM is still awaiting direction on what

is to be done with the second carport.

144. On or about 17 June 2017 the applicant confronted the respondent about the

cost of the carport and the fact that he had ordered two carports which the

20 Appendix 13 applicant’s documents filed 5 December 2017

33

applicant had paid for. He said the respondent denied the whole story. The

applicant said he advised the respondent not to attend his property after this

date.

145. By this stage the respondent had already dismantled and removed the single

carport from the applicant’s property. The applicant decided to bring a claim

for damages against the respondent in the tribunal. In this claim he alleged that

the respondent had fraudulently purchased the two carports on his partner’s

credit card without telling the applicant or his partner.

146. In relation to the carport claim the respondent stated in his Response21 and

chronology:

On the 24 May 2017 I became aware that Mal and Nyomi had a number of disputes with other laborers (sic) and trades people and I became concerned they were setting me up to not be paid or blame me for all the damage I was trying to help them rectify.

Mal and Nyomi were aware that the cost of the materials for their carport was $2,000 and that the supplier of the carport, (Still Standing Sheet Metal Pty Ltd) required payment of $3,500.

The additional materials would fund another of my client’s projects.

I totally reject the allegation that I was acting in a fraudulent manner.

On the 24th of May 2017, I asked them to pay for the supplier (SSSM) directly for the double carport if they wished to proceed.

They agreed and Nyomi spoke with Still Standing Sheet Metal (in my presence) and I understand this resulted in them purchasing the materials for the carport.

147. In cross examination the respondent was asked about his statements in the

Response that he included the second carport in the SSSM order because the

applicant was behind with the payments, because he had not received any

money from the applicant for a while and because he was concerned that he

might not be paid. The respondent conceded that the carports were ordered on

21 At pages 8 and 9

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24 May 2017 and that the applicant had not only paid him $1,000 the day

before but that he also paid $3,500 to SSSM on 24 May 2017.

148. During cross examination, while the respondent agreed that he had not told the

applicant he was ordering two carports, he did not concede that his conduct in

ordering two carports from SSSM and having the applicant or his partner pay

for them in the belief that he was ordering one carport for them was misleading

and dishonest. He appeared to have convinced himself that it was appropriate

for him to tell the applicant that the total cost was $3,500 for supplying

($2,000) and installing ($1,500) his double carport and to request that he pay

this amount to SSSM, when SSSM were not entitled to the labour charge. He

did not see anything wrong in spending $1,500 of the applicant’s money on a

second carport for a totally unrelated job that the respondent was undertaking.

The Tribunal was unimpressed by both the respondent’s conduct and his

evidence.

149. The respondent also stated in this Response that if was given the material

remaining at SSSM (carport 2), which he would collect himself, he would

agree to the amount of $1,950 (being the amount already paid by the applicant)

being taken from his outstanding invoices, the subject of his counter claim.

This would leave an amount of $290 being claimed by the respondent as

payable by the applicant. Before the end of the hearing the respondent

abandoned this claim for the $290.

150. Having considered all of the evidence, and seen the parties given their

evidence, the Tribunal is satisfied and finds that the respondent misled the

applicant when he told him that SSSM required payment of $3,500 for the cost

of the double carport. The Tribunal rejects the respondent’s claim that he

required the applicant to pay $3,500 because the applicant had been behind in

his payments and he was concerned that he would not be paid.

151. The Tribunal is satisfied and finds that the respondent intentionally did not

disclose to the applicant that he was ordering two carports from SSSM, one of

which was for a different client’s project in Lyneham. In doing so he deceived

the applicant. His conduct was reprehensible.

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152. The applicant now finds himself with a disassembled single carport at his

property which he said he is happy to keep or dispose of as he sees fit, a new

single carport which cost him $2,450 plus GST for parts and to erect it, and a

double carport which he has paid for and is held at SSSM.

153. The Tribunal was, as stated above, unimpressed by the respondent’s evidence.

It showed that he was dishonest in relation to this transaction. The agreement

between the parties was that the respondent would supply and install the double

carport for $3,500. The applicant paid the $3,500. The respondent did not

install the carport which the applicant subsequently obtained from SSSM. The

applicant has incurred a cost of $2,450 to have the carport erected. He provided

a copy of the invoice from AT84 Pty Ltd who had carried out this work. The

cost for the erection of the carport and supplying beams, joints and brackets

was $2,450 plus GST of $245, totalling $2,695. The respondent is liable to pay

damages of $2,695 for the costs incurred by the applicant in installing the

single carport.

154. In relation to the double carport held at SSSM the Tribunal will make orders

requiring the respondent to also pay the applicant $1,935.46 for the carport at

SSSM. Upon payment the applicant is to provide SSSM with a copy of these

orders and notify them that they are at liberty to release the material for this

carport to the respondent. The respondent is to collect the carport from SSSM.

155. The Tribunal will also order that the applicant, as the owner of the single

carport, is able to dispose of the dissembled single carport which the

respondent returned to his property on 9 September 2017, as he sees fit.

Rent

156. The applicant originally claimed loss of rent for six months caused by the

respondent’s failure to carry out the work with due care and skill which

delayed the completion of the work at the applicant’s property, and hence the

property being ready to be rented out. The claim was for the period of six

months commencing at the start of June 2017 at $450 a week, $11,700.

157. The respondent said when he was undertaking the agreed work for the

applicant the property was the applicant’s principal residence and he was not

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aware the property was to be used as a rental property. He added he did not

understand how he was liable for any loss of rent.

158. The applicant said that from when they had the first discussions in May 2017

which led to the oral agreements he repeatedly made the respondent aware that

he wanted the works finished as soon as possible as he wanted to rent the

property out. He said when he terminated the agreement with the respondent in

mid-June 2017 he was not in the position to complete the outstanding and

defective works as he had, by then, gone over budget and he needed the works

to be completed before he could rent out the property.

159. The applicant told the Tribunal that his partner had purchased a property which

was due to settle on 14 July 2017 and that he then proposed to live in her

property and rent out his property. He said he had arranged for a work

colleague, Anne-Maree Hevey, to rent his property. He filed a Statutory

Declaration22 from Anne-Maree Hevey declared on 12 October 2017 in which

she stated that, in early May 2017, she had agreed with the applicant to rent the

property from 1 July 2017 for $420 a week. Ms Hevey did not sign a tenancy

agreement. Ms Hevey stated that when her existing lease was coming to an end

in June 2017 the applicant’s property was not in a state that she could readily

or comfortably move into and they agreed to move the commencement date

into July 2017. However, she had to return to Queensland towards the end of

July 2017 and did not pursue renting the applicant’s property.

160. The applicant told the Tribunal that part of the agreement with Ms Hevey was

that he and his partner would still be living in his property with her for the first

two weeks of her tenancy. The Tribunal queried this arrangement and whether

Ms Hevey would be agreeable to paying rent at $420 per week for these two

weeks when the applicant and his partner were still living there.

161. The applicant said that he started looking for tenants to rent the property from

July 2017 which was when the respondent was supposed to have finished the

work, but the property was not ready for tenants until September. He advertised

it on Gumtree at the start of September and was able to rent it at $450 per week

22 Applicant’s 5 December 2017 documents at attachment 21

37

from 20 October 2017. At the hearing the applicant reduced this claim from

$11,700 to $6,720 (16 weeks at $420 per week being the weekly rent that

Ms Hevey had agreed to pay) for the period from 1 July 2017 to 19 October

2017.

162. In October 2017 the applicant arranged for the Independent Property Group,

Luton and Element Property Services23 to provide rental appraisals for his

property. Luton’s appraisal was $390 - $430 per week unfurnished and $460 -

$500 a week furnished. The other two agencies’ rental appraisals were $450

per week. The applicant was able to obtain a tenant at $450 a week from

20 October 2017. The Tribunal is satisfied that the amount of weekly rent then

sought by the applicant for the property was reasonable.

163. In any claim for damage the applicant has a duty to mitigate any loss claimed.

The Tribunal notes that the applicant said when he terminated the agreement

with the respondent he did not have funds available to complete the

outstanding works. In these circumstances the applicant should bear some

responsibility for the delay in completing the outstanding works when his

claim includes rent for the period when the works were outstanding. While the

electricity issues were fixed up on 12 July 2017, the yard levelling was not

undertaken until 6 October 2017. The carport was erected on 10 October 2017.

The property was tenanted 10 days later.

164. Having considered all of the evidence, the Tribunal accepts the applicant’s

evidence that the property was ready for renting from September 2017, when

he advertised it on Gumtree, notwithstanding that the outdoor works were not

completed until October 2017. As the applicant intended living at the property

until 14 July 2017 the Tribunal has determined that the period for calculating

the applicant’s rent loss caused by the respondent’s defective work is from

15 July 2017 to 1 September 2017, a period of seven weeks. The Tribunal was

not satisfied from the available evidence that the respondent’s defective work

caused or contributed to the applicant not being able to rent the property from 2

September 2017 to 19 October 2017.

23 Applicant’s 5 December 2017 documents – three appraisals in attachment 21

38

165. Based on the tenancy arrangement the applicant had with Ms Hevey the

amount of compensation is calculated at $420 for seven weeks, $2,940, which

the Tribunal has determined is to be equally borne by the applicant and the

respondent. The Tribunal finds that the respondent is liable to pay the applicant

$1,470 for three and a half weeks of the applicants’ loss of rent and the

applicant is responsible for the balance.

Pain and suffering

166. The applicant did not provide any credible evidence in support of this claim.

The Tribunal dismisses this claim.

Conclusion

167. For the above reasons the Tribunal will enter judgment for the applicant,

against the respondent in the sum of $10,480.46 calculated as follows:

(a) Floor levelling $1,000.00

(b) Painting $ 275.00

(c) Laundry cabinet $1,500.00

(d) Electrical rectification $ 465.00

(e) Yard levelling $ 990.00

(f) Carport Erection $2,695.00

(g) Carport at SSSM $1,935.46

(h) Rent $1,470.00 $10,330.46

(i) Filing Fee24 $ 150.00

$10,480.46

168. The Tribunal will make orders in relation to the payment of the judgment

monies to the applicant and in relation to carport 2 which is still held by SSSM.

………………………………..Presidential Member E Symons

24 Pursuant to section 48(2)(a)(i) of the ACAT Act

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FILE NUMBER: XD 837/2017

PARTIES, APPELLANT: Mirwais Sadat

PARTIES, RESPONDENT: Cvetko Taneski

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT N/A

TRIBUNAL MEMBERS: Presidential Member E Symons

DATES OF HEARING: 11 December 2017, 8 January 2018

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