Fiorello v AAA Water Bores [2013] QCAT 581

CITATION: Fiorello v AAA Water Bores[2013] QCAT 581 PARTIES: Mr Orlando Fiorello (Applicant) v AAA Water Bores (Respondent) APPLICATION NUMBER: MCDO1784-12 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 27 August 2012 HEARD AT: Brisbane DECISION OF: K O’Hanlon, Adjudicator DELIVERED ON: 22 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Stephen Sharkey pay to Orlando Fiorello the sum of $24,760.00. CATCHWORDS: Contract – personal representation – improper carrying out of work – Australian Consumer Law – unlicensed APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Orlando Fiorello RESPONDENT: No appearance REASONS FOR DECISION [1] As a result of verbal negotiations between the parties Mr Sharkey attended at Mr Fiorello’s Warner property and over a course of time put down 2 water bores. The first water bore failed and subsequently Mr Sharkey put down another water bore which also failed. Mr Fiorello now seeks rectification costs in accordance with the quotation obtained from Just Drilling Pty Ltd by quotation number 1559. That amount is $24,760.00. [2] When the matter came on for hearing of the Tribunal in Brisbane on 27 August 2012 the applicant appeared together with Mrs Fiorello. There was no appearance by the respondent. -- 1 of 2 -- 2 [3] From further documents filed by Mr Fiorello it appears that Mr Sharkey drilled both bores on Mr Fiorello’s property and was unlicensed. He was using a license of a Mr Mark Crowson who was ultimately found guilty in the Magistrates Court in Brisbane on 4 September 2012 under sections 826(1) and section 818(A) of the Water Act 2000. [4] It is noted that as a result of these convictions and as part of the orders that were made in the Magistrates Court on 17 September 2012 Mr Crowson was ordered to reseal the bore on Mr Fiorello’s property by 4 December 2012 but did not do so. [5] In any event at all times the Tribunal is satisfied that Mr Fiorello was dealing with Mr Stephen Sharkey either trading under his own name or had ostensible authority to act as he did by representing himself as the sole person to conduct the water drilling on Mr Fiorello’s property in his own name. [6] I note that in the evidence furnished by Mr Fiorello the invoices from Mr Sharkey are signed solely by Mr Sharkey, furthermore the letters of 9 July 2007 from Mr Sharkey indicate that he was the person responsible for conducting the operations on Mr Fiorello’s property. Subsequently after the hearing Mr Sharkey filed an application for miscellaneous matters on 20 August 2012 merely alleging that AAA Water Bores was operated by his company, Stephen Sharkey Pty Ltd. He just makes a bald statement that the company business name had been deregistered and wound up for some time. In any event I disregard this as there is no evidence of it apart from the bald assertion. [7] In evidence lead by Mr Fiorello was documentation from the Department of Environment and Resource Management in the form of letters, correspondence and technical data indicating how the bores should have been put down in the circumstances. It is evident that the work carried out was improper in all the circumstances. It was not carried out with proper diligence. Mr Fiorello did not get what he had bargained for. [8] It is considered that at all times Mr Sharkey was dealing on a personal basis with Mr Fiorello and the evidence is overwhelming in support of Mr Fiorello’s claim, I therefore order that Stephen Sharkey pay to Orlando Fiorello the sum of $24,760.00. -- 2 of 2 --