Chinula v Advanced Asbestos Removal Qld Pty Ltd [2014] QCAT 227

CITATION: Chinula v Advanced Asbestos Removal Qld Pty Ltd [2014] QCAT 227 PARTIES: Yamiko William Lewis Chinula (Applicant) v Advanced Asbestos Removal Qld Pty Ltd (Respondent) APPLICATION NUMBER: BDL 255-13 MATTER TYPE: Building matters HEARING DATE: 20 March 2014 HEARD AT: Mackay DECISION OF: Member Johnston DELIVERED ON: 19 May 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The Tribunal finds that Mr Chinula’s payment of Four Thousand Three Hundred and Fifty Five Dollars ($4355.00) to Advanced Asbestos Removal meets his contractual obligations for the remediation works undertaken by the Respondent. 2. The Tribunal dismisses the Respondent’s Response and Counter-Application. 3. The Tribunal orders that each party bear their own costs. CATCHWORDS: BUILDING MATTERS - Dispute over the terms of the contract APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Yamiko Chinula RESPONDENT: Ms Karen Ngatai -- 1 of 6 -- 2 REASONS FOR DECISION What is this application about? [1] On 2 June 2013 Mr Darren Terangi the Managing Director of the Respondent sent Mr Chinula a proposal to deal with the asbestos in the floor of Mr Chinula’s residence. The Asbestos Remediation Proposal provided at clause 10 the following quote: Service Area Metre (m2) Rate per (m2) Total Remove & dispose decontaminate Friable vinyl floor removal and grind timber finish 24.25 m² $250 $6062.50 Monitor & Independent Clearance To all areas $830.00 Less overpayment from previous job Deposit amount overpaid $-537 Sub Total $6355.50 GST 10% Included Total $6355.50 [2] The Proposal provided for Mr Chinula to pay $6355.50 for the remediation work. This included an estimate of the cost of the Independent Air Monitoring Testing (“Testing”) of $830. Clause 12 of the Proposal provided that the Applicant would to be responsible for any final costs of the Testing over the estimate. [3] On 6 June 2013 Mr Chinula rejected the quote that have been provided and asked for a lower remediation cost in the range of $130 per square metre. [4] On 13 June 2013 Ms Karen Ngatai responded on behalf of Mr Terangi to Mr Chinula’s e-mail stating that “Darren is in meetings today; and has asked to send through the best revised price we can do is $4355..”. [5] Mr Chinula sent an e-mail to Ms Karen Ngatai on the afternoon of 13 June 2013 thanking her for: “reviewing the cost. Please take this e-mail as acceptance of your quote to complete these works on the 20th and 21st of June for the below price of $4355.00”. -- 2 of 6 -- 3 [6] Mr Chinula’s told the Tribunal that his understanding was that the Proposal that had been sent to him had been amended from $6355.50 to $4355.00. His email of 13 June 2013 was accepting that offer. [7] Ms Karen Ngatai’s told the Tribunal that her understanding was that the Mr Chinula would pay $4355.00 for the remediation work and the Proposal provided for the Applicant to reimburse the Respondent for paying the cost of the Testing. This would mean that Mr Chinula would need to pay the sum of $4355 plus the sum of $830 which was the estimate in the Proposal for the cost of the Testing. [8] The remediation work was undertaken and the Respondent has on 2 July 2013 billed Mr Chinula $5703.83. This amount was made up of the remediation charge of $4355.30 plus $830 for the cost of the Testing plus GST. The Tribunal notes that GST was included in the Total Sum payable under the original Proposal. [9] The issue for the Tribunal is whether or not Mr Chinula is liable to pay the cost of the Testing and the cost of the GST. The evidence of the parties [10] Ms Karen Ngatai’s evidence was that it was only the price per square metre that was being reduced. The Respondent’s intention was that Mr Chinula was to pay for the remediation costs fixed at $4355 and the estimate allowed for the Independent Air Monitoring Test namely $830. [11] Her evidence was that the only matter which was discussed with the Applicant was the price per metre cost for removal of the asbestos. The Tribunal accepts that evidence. [12] What is clear from her evidence is that she never said to Mr Chinula the offer of $4355 was plus GST and plus the Testing allowance of $830.00. [13] Mr Chinula’s evidence was that the Respondent had made him an offer which he accepted. He accepted the Proposal at the lesser amount offered and that this incorporated providing the Testing. He had paid the Respondent and therefore had met his obligations to the Respondent and could not be pursued for the $830.00 or GST on top. [14] The Respondent’s failure in this case is not to be clear in relation to its communication with the Applicant. If the Respondent had provided an updated Proposal then the Respondent would have turned its mind to the cost of the Independent Air Monitoring Test. The Respondent could have made an amended offer which included this cost or alternatively could have spelt out to the Applicant that this cost was on top of the offer that had been made to undertake the remediation. The Respondent did neither of these two steps and when the Applicant made his offer to make part payments towards the cost this was on the basis that he owed the Respondent the sum of $4355. -- 3 of 6 -- 4 [15] The Applicant is entitled to rely on the offer that has been made to him. If the documentation does not reflect the intention of the Respondent that is not in any way the fault of the Applicant. This is a warning to parties to ensure proper contract documentation is prepared to reflect the agreement that has been reached. The understanding of the agreement must be reflected in its terms. The Tribunal cannot undo the terms of the agreement when the writing doesn't reflect the intention of both of the parties. [16] The Applicant is entitled to assume that a counter offer in a global form represents the total amount payable unless the Respondent has qualified the counter offer. There is nothing in the e-mail from Ms Ngatai to the Applicant to suggest that the sum of $4355 was not the total amount payable to the Respondent. There was no query from the Respondent to the Applicant’s e-mail where he accepts the offer of the Respondent of $4355.00. The Respondent had the opportunity at that time to clarify the offer that had been made namely to state that in addition to the remediation costs of $4355 that the Applicant would also need to pay the costs of the Testing which are the estimated $830 and would pay GST on the final account . This did not happen and the work was undertaken on the basis of the Applicant and Respondent having different views of the total cost of remediation. [17] The law around contracts is clear. There must be an offer and acceptance of that offer. The Respondent made Mr Chinula an offer which he rejected. The Respondent made another offer their “best offer” which Mr Chinula accepted. If this was an offer qualified by other requirements or stipulations this was never spelt out to the Applicant. The Respondent had the opportunity to provide an amended Proposal but chose not to do so. [18] This is clearly an unfortunate situation where the “best revised price” could have more than one meaning. Did it mean as it says that the Respondent would do the work for $4355? Or did it mean that the Proposal was being amended just in the top line of the quote? The Respondent has the responsibility to be clear about the terms of the offer it made to the Applicant. [19] The Tribunal makes one further point in relation to the Proposal. The Proposal only provided for an estimate of the cost of Testing. The Proposal provided for the amount payable to be adjusted in the event that the final cost of the Testing was higher than the amount which had been allowed. The Respondent’s evidence which is accepted by Tribunal was that the actual cost of the Independent Air Monitoring Testing was $1545.17.The Proposal treats the Testing like a provisional amount and provides in clause 12 of the Proposal for the final amount to be adjusted to reflect any variation. [20] The cost of the Testing was much greater due to the fact that the Respondent asked for the Testing to be done as soon as possible and that turned out to be on a weekend. The Respondent was trying to help the Applicant get back into his house as soon as possible. -- 4 of 6 -- 5 [21] On the basis of the Tribunal’s understanding of the agreement between the parties the Respondent would be entitled to have claimed the difference between the actual cost of $1545.17 and the estimate in the Proposal of $830. This would have allowed the Respondent to claim from the Applicant the sum of $715.70 as a variation provided for under the Proposal. [22] Ms Ngatai told the Tribunal that it was the practice of the Respondent only to claim the estimate of the cost contained in proposals. The Tribunal gave the Respondent an opportunity to reconsider its position given the Tribunal's interpretation of the agreement between the parties. However the Respondent chose to waive of those rights. The Respondent confirmed that the amount which the Respondent was the pursuing was the sum of $830. The Tribunal's findings [23] Mr Chinula had an asbestos problem with the flooring of his residence. [24] The Respondent put a proposal to him to treat his floors for the sum of $6355. [25] Mr Chinula did not accept the Respondent’s quotation to undertake the work. [26] The Respondent made another offer to Mr Chinula by e-mail to undertake the work for $4355. [27] There were no conditions or stipulations attached to the offer to undertake the work for $4355. [28] Mr Chinula sent an e-mail to the Respondent accepting the Respondent’s offer to undertake work for $4355. [29] The work was undertaken by the Respondent and the Applicant has been billed for the remedial work of $4355 plus the sum of $830 which was the estimate for the cost of Testing plus GST. [30] Mr Chinula has paid the sum of $4355 for the remedial work but has refused to pay the sum of $830 plus GST. Tribunal’s decision [31] The Tribunal finds that the agreement between Mr Chinula and the Respondent comprises: the Proposal; the e-mail from Ms Ngatai to Mr Chinula dated 13 June 2013 with the price variation; and the e-mail to Ms Ngatai of 13 June 2013 with Mr Chinula’s acceptance of the offer. [32] The Tribunal finds that the agreement between Mr Chinula provided for him to pay the sum of $4355 for the cost of the remediation work. The agreement also provided for Mr Chinula to pay the difference between the estimate in the proposal for Testing and that the actual cost. This means -- 5 of 6 -- 6 that the Respondent would have been entitled to have recovered the sum of $715.17 from the Applicant. The Respondent has waived its rights to pursue this amount from the Applicant. [33] The Tribunal finds that Mr Chinula’s payment of $4355 to the Respondent meet his obligations in relation to the agreement he had with the Respondent to undertake the remediation work. [34] The Tribunal dismisses the Respondent’s counter – application. Legal Costs [35] Legal costs in the Tribunal are not awarded as a matter of course. Each party must bear their own costs1, unless the interests of justice require the Tribunal to order a party to pay the costs of another party.2 [36] There is therefore a strong indicator against awarding costs: Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra- indication against costs orders in s.100.3 [37] There is nothing here to justify departing from the strong indicator against awarding costs. The parties clearly had interpreted the agreement in different ways. The Respondent has waived rights that it has against the Applicant. [38] Each party is to bear their own legal costs. 1 Queensland Civil and Administrative Tribunal Act 2009 s 100. 2 Ibid s 102. 3 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at [29]. -- 6 of 6 --