Cullen v Gabriel [2012] QCATA 121

CITATION: Cullen v Gabriel [2012] QCATA 121 PARTIES: Stephen Cullen t/as Cullen Earthmoving (Applicant/Appellant) v Mr Marten Gabriel (Respondent) APPLICATION NUMBER: APL381-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Mr Charles Brabazon QC, Member DELIVERED ON: 16 July 2012 DELIVERED AT: Brisbane ORDERS MADE: a) Dismiss the appeal; b) Affirm the decision of the adjudicator; c) Claims 287/11 and 413/11 are both dismissed; d) No order as to costs, including the costs of this appeal. CATCHWORDS: Contract – variation – additional claim not allowed APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Mr Cullen did some landscaping work for Mr Gabriel, around his house. They have had a falling out, about some of the work. Mr Cullen says that Mr Gabriel has to pay him for two or three days work he did just before leaving the job. He asks for $1,450 plus some legal costs – $1,592.10, in total. The adjudicator dismissed his claim, so he now appeals to QCAT. -- 1 of 4 -- 2 [2] Mr Gabriel said that Mr Cullen did not do the work properly, and caused some damage. He asked the adjudicator to award him $4,705.98. The adjudicator dismissed his claim. He has not appealed against that order. [3] So, is Mr Cullen entitled to recover the $1,592.10? That is the issue in this dispute. [4] They had signed a contract for minor domestic building work, on 19 January 2011. Mr Cullen was to do the work for $22,000. There was no preliminary deposit. Rather, Mr Gabriel agreed to pay, “$10,000 when job 50% complete … when site cleared and rocks on site … the balance of $12,000 at practical completion.” [5] Work started on 29 January. Most of the land was cleared, and some of the rocks were on site. Mr Cullen said that he had done the work by 4 February. Mr Gabriel disagreed. Mr Cullen stopped work. Reluctantly, Mr Gabriel paid him $10,000 on 8 February. [6] Work on the rock walls then began on 9 February, and continued for three days. Mr Gabriel said he was not happy with Mr Cullen’s work. [7] Mr Cullen knew another landscaper Gene Fewings and his wife worked as Currumbin Earthmoving. On 11 February, they discussed the job. Mr Cullen asked him if he could take over the job. Mr Cullen said that he agreed that Fewings would do the work to finish building the rock walls. Mr Cullen says that he agreed to supply the rocks, to complete the job. Mr Cullen was to get $2,000, and Fewings was to get $10,000. Mr Gabriel would still be paying the agreed $22,000 for the job. [8] Mr Cullen told Mr Gabriel that Fewings would complete the job. Fewings called to see Mr Gabriel on 12 February. Mr Gabriel agreed to pay him the $12,000 to finish the job. Their agreement was on the basis that Mr Cullen had agreed to supply the rocks. [9] Mr Gabriel and Fewings signed a new contract. Work was to start on 14 February. It said, “the work … involves labour and machinery hire only. All materials are to be supplied by Steve Cullen Earthmoving”. The agreed price was $12,000, which was duly paid. [10] On 14 February Mr Gabriel sent an email to Mr Cullen – “just a short note to confirm we are both agreed to cancel the contract between us and it is to be completed by Currumbin Earthworks. I have agreed to pay the balance of $12,000 for the remainder of the work.” [11] It seems that the present dispute between them then erupted. On 14 February Mr Cullen saw that Fewings was working on the site. According to Mr Gabriel, he became agitated and belligerent, “telling me to stick the …. job up my arse, and screamed abuse”. He then emailed Mr Gabriel, saying that he wanted $2,000 for work he had done. -- 2 of 4 -- 3 [12] Mr Gabriel responded by saying that Mr Cullen had been overpaid by $3,000 because he had not supplied materials he had been paid for. Their tense exchanges are the basis of the present dispute. Is Mr Cullen entitled to an extra payment? [13] It is necessary to identify the work that was the basis of Mr Cullen’s claim. According to Mr Gabriel, it was work done after his $10,000 payment was made – “after three more, much interrupted days Mr Cullen had completed just 4.7 metres of walls, that is only 27 bush rocks in total had been put in portion by February 11th, and it was evident Mr Cullen did not have the skill or equipment to complete the job satisfactorily.” He said, “If all the walls look like that I won’t be satisfied with the job.” He became irate and “left the jobsite returning later with (Fewings).” [14] After 14 February, when Fewings was working on the site, Mr Cullen asked for $2,000, based on an hourly rate for his work over three days. Mr Gabriel declined to pay it, saying he was owed around $3,000 for materials not supplied. (As it happened, Mr Cullen did not supply the further rocks to the site). [15] It seems that the three days claimed were over 9, 10, 11 and 12 February, according to Mr Cullen. That is consistent with Fewings first meeting with Mr Gabriel, on 12 February according to Mr Cullen. [16] The adjudicator explained why she could not accept Mr Cullen’s claim. Her reasons can be summarised this way – it was not reasonable for Mr Cullen to claim an hourly rate; he was the one who terminated the contract with Mr Gabriel, Fewings had a contract with Mr Gabriel, that did not include Mr Cullen; Mr Gabriel had the job completed for the $22,000 so there was no contractual obligation to pay anything more to Mr Cullen; there was no evidence about how the claim was calculated; the contract did not provide for an hourly rate; Mr Cullen had taken it upon himself to ask Fewings to finish the job; no records were kept to support the claim; and Fewings gave evidence that he was on site and that Mr Cullen was not there. (That last statement seems to be unhelpful, as the days claimed were before Fewings’ arrival on site). [17] Ultimately, the adjudicator found that Mr Cullen walked away from the job, because of the clash with Mr Gabriel, and took it upon himself to arrange Fewings to complete the work. [18] In my opinion, the adjudicator’s conclusion was correct. The first point is the effect of the original contract between Mr Cullen and Mr Gabriel. It was still in force up to 12 February when Mr Cullen says his work on the wall was done. A claim for an hourly rate is inconsistent with the contract they had made and was still in force. [19] Secondly, Mr Cullen allowed, and supported, the idea of a new contract with Fewings. It is likely, as he says, that he agreed with Fewings that he would be paid $2,000 and that Fewings would get $10,000. As he also says, with regret, he did not participate in the discussions between Mr -- 3 of 4 -- 4 Gabriel and Fewings. If Fewings took advantage of his absence, then that is not something for which Mr Gabriel was responsible. [20] Thirdly, the overall effect of the arrangements between the three men, was to maintain the original $22,000 agreement, with Fewings coming in to replace Mr Cullen. If Mr Gabriel was to pay more than the $22,000, then there had to be an agreement to that effect. That did not happen. [21] These will be the orders of the Tribunal: a) Dismiss the appeal; b) Affirm the decision of the adjudicator – claims 287/11 and 413/11 are both dismissed; c) No order as to costs, including the costs of this appeal. -- 4 of 4 --