Elva Pty Ltd v Cunningham [2010] QCAT 538

CITATION: Elva Pty Ltd v Cunningham [2010] QCAT 538 PARTIES: Elva Pty Ltd v Mr Stephen Cunningham APPLICATION NUMBER: 1969/10 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 16 September 2010 HEARD AT: Brisbane DECISION OF: Kate Buxton, Adjudicator DELIVERED ON: 29 October 2010 DELIVERED AT: Brisbane ORDERS MADE: The Respondent pay to the Applicant the sum of $2,750 by 12 November 2010 CATCHWORDS : Consulting contract, scope of works, requisite care and skill, whether unpaid portion of invoice amount payable. APPEARANCES and REPRESENTATION (if any): APPLICANT : Ms Polkinghorne appeared for Elva Pty Ltd RESPONDENT: Mr Cunningham appeard in person. -- 1 of 5 -- REASONS FOR DECISION 1. In this application to recover the unpaid balance of an invoice for services rendered, the Respondent disputes whether all the contracted services were in fact rendered and whether they were undertaken with the requisite skill and care. He has paid only a portion of the invoiced amount and contends that he has paid enough. 2. The Respondent wished to use various experience he had gained in relation to workplace health and safety in the construction industry in order to obtain the necessary accreditation to allow him to become a trainer (registered training organisation or “RTO”) in relation to certain disciplines. He wished the delivery of this training to be an adjunct to his business undertaking of retail sales of rigging, lifting, materials handling and safety equipment. 3. The Applicant is a consultant who assists people such as the Respondent through the processes for registration and approval to undertake such courses. 4. The parties agreed that the Applicant was to undertake consulting work for the Respondent so that he could gain RTO accreditation in relation to various courses. The Applicant offered and the Respondent agreed that the Applicant would undertake this work for the quoted sum of $5,000 plus GST. At the heart of this dispute between the parties is the scope of the works to be undertaken for that sum and whether the Applicant has completed all the agreed tasks. The Applicant contends that she has more than fulfilled her contractual duties. The Respondent defends the claim on the basis that not all registrations sought were obtained and that, this being the result of the Applicant’s failure to properly prepare the Respondent for the process, the Respondent should not have to pay the full quoted price for achieving those registrations. Scope of works 5. Ms Polkinghorne, on behalf of the Applicant, stated in her evidence and in documents supporting the claim that $5,000 plus GST was to be for ten days work. She further stated that she conducted significant additional work, of about 25 days in total, but that she sought to recover in this application only the agreed amount. 6. The suggestion that $5,000 plus GST was for ten days work was first raised in the Applicant’s email dated 23 November 2009. It is expressed in that document as an approximation of the time taken to perform the tasks, rather than being an agreed term of the Applicant’s engagement. I do not, therefore, find that an essential term of the contract was that she be paid $5,000 if she completed at least ten days work. 7. The quote dated 13 May 2009 is instructive as to what was to be undertaken by Ms Polkinghorne on behalf of the Applicant for the quoted -- 2 of 5 -- sum. That quote was prepared by Ms Polkinghorne and forwarded to the Respondent. I accept that this became the basis of the agreement between the parties when the quote was accepted in November 2009. 8. The quote does not specify that $5,000 plus GST is for ten days work. Rather, it identifies a series of tasks to be undertaken by the Applicant for the Respondent and expressly states that the sum of $5,000 plus GST is not payable “until the conclusion of the project and all of the above have been achieved”. 9. Part of the scope of works identified in the quote was for the Respondent to “confirm items to be added to the scope of registration”. That is clear both from the quote prepared in May 2009 and the subsequent email exchange in November 2009. In the original quote, two specific “competencies” being “shift loads using gantry equipment” and “work safely at heights” are identified and the following two “accredited courses” are listed: (1) General safety induction and (2) Course in working in confined spaces. 10. There are many other tasks which were to be undertaken, but these relate to the processes and procedures necessary in order to achieve RTO status in relation to the accredited courses. 11. In the attachment to Ms Polkinghorne’s email to Mr Cunningham dated 23 November 2009 a “to do” list is presented with Ms Polkinghorne’s comments. On pages two to three of this list a number of “competencies” are identified to “add to the scope of registration”. The price quoted to undertake the work in relation to these additional competencies did not change from the original quote in relation to the two listed competencies and two accredited courses mentioned in that quote. The conclusion necessarily to be drawn from this is that the Applicant was prepared to do the work necessary to match the Respondent’s skills to the RTO registration sought and that the parties were to work together to determine in which courses the Respondent would ultimately seek registration. 12. That is precisely what then occurred and the parties worked together exchanging relevant information. The Applicant complained in evidence that the Respondent changed his mind as to which courses he wished to pursue. The Respondent complained that the application process was incomplete or flawed in a way which resulted in him only achieving registration in two of the six courses for which he applied. 13. However, looking back at the original quote, only two courses were agreed to be achieved. To the extent that the parties mutual expectations were altered by the 23 November 2009 “to do” list, I do not consider that achieving registration in the additional courses mentioned amounted to a further precursor for payment in the same way as has been described in the original quote. Putting this another way, the acceptance of the quote created an obligation on the Respondent to pay to the Applicant $5,000 plus GST upon achievement of registration in two courses. On 23 -- 3 of 5 -- November 2009 further competencies were added, but the contract price did not change. In my view, the parties did not take the additional step of agreeing that the Applicant would only be paid for her services when a larger (practically open-ended) list of competencies and training registrations had been met. This is too uncertain in my view to be enforceable and is unlikely to have been what the parties intended. 14. This conclusion is supported, to an extent, by the statement attached to Mr Cunningham’s response and particularly paragraphs 3.8 and 3.9 where he acknowledges his role in deciding which courses to pursue and which to abandon. Skill and care 15. The Respondent also submits that the Applicant fell short of the required standards of skill and care in discharging the contract as she failed to ensure the courses for which the Respondent sought registration matched his experience and skills. I directed the preparation of written submissions on this point at the conclusion of the hearing and have examined the documents produced by both the Applicant and the Respondent on this point. 16. I am satisfied that the Applicant, in the role of industry expert and advisor, ought to have ensured that the Respondent’s skills matched the courses for which he sought registration. The Applicant sought the Respondent’s CV and was provided with an understanding of his skill set and experience. It stands to reason that she should have been required to advise on courses appropriate to his qualifications and experience. 17. However, there is no evidence that the Applicant failed to choose appropriate courses. Rather, much of her work seemed to be focussed on choosing the best courses. This became a source of frustration to the Respondent as he felt that the Applicant was constantly “changing her mind”. 18. It seems that one of the reasons the Respondent failed to achieve certain registrations was because of poor performance at the relevant audit and Mr Cunningham contends that this was done to a failure by Ms Polkinghorne to prepare Mr Cunningham for this process. The evidence to support this allegation is more compelling (Mr Cunningham’s oral evidence and particularly paragraph 4 of his response, together with references in supporting documentation). However, the Respondent did achieve registration for two of the six courses for which he ultimately applied. More work needed to be undertaken to achieve registration in the other courses but the two registrations which were achieved support the Applicant’s claim that the Applicant had discharged the contractual responsibilities and that payment of the unpaid portion of the invoice sum of $5,000 plus GST ($2,500 plus GST, totalling) $2,750, is now owing. -- 4 of 5 -- Advice on course selection 19. The final allegation in the response (paragraph 17) is that, during the course of discussions with Ms Polkinghorne as to which courses should be pursued, the Applicant wrongly advised the Respondent as to appropriate courses. He stated that, in reliance on the Applicant’s earlier, incorrect, advice he purchased training materials at a cost of more than $2,746. 20. A claim for this sum of money was not seriously pursued either by way of separate application or by counter claim. No evidence was produced as to how that figure was calculated and no receipts or invoices were produced by the Respondent. However, that amount is very close to the sum by which the Respondent reduced his payment to the Applicant for the services. 21. I cannot find for the respondent in relation to this allegation, which was not seriously pursued by the Respondent at the hearing. There is simply a lack of supporting evidence. However, I observe that it would have been extremely frustrating if the Respondent had been put into a position where he had purchased items based on the Applicant’s incorrect recommendation. 22. In this case, the Respondent’s frustration can be balanced against the position of the Applicant who quoted $5,000 plus GST to assist the Respondent to achieve RTO status in relation to at least two courses. She also assisted with applications (albeit unsuccessful ones) for various other courses. The Applicant thought this would take her about ten days and in fact took more like 25 days. Her frustration comes from the length of time taken to discharge this contract. 23. The Applicant is entitled to recover only for the unpaid balance of the agreed sum of $5,000 + GST ($2750) and the Respondent is obliged to pay this amount on the basis that the essential terms of that contract have been discharged. Order 24. The Respondent is ordered to pay to the Applicant the sum of $2,750 by 19 November 2010. -- 5 of 5 --