Bushell v Mission Beach Pool & Property Services [2012] QCAT 462

CITATION: Bushell v Mission Beach Pool & Property Services [2012] QCAT 462 PARTIES: Mr Ernest Bushell (Applicant) v Mission Beach Pool & Property Services ABN 66 597 921 370 (Respondent) APPLICATION NUMBER: MCDO959-12 MATTER TYPE: Other minor civil disputes matters HEARING DATE: 10 July 2012 HEARD AT: Brisbane DECISION OF: Ms Williams, Adjudicator DELIVERED ON: 24 September 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The respondent pays the applicant the sum of $9,376.46 within 28 days being: (a) The cost for rectification works of $6,966.50; (b) A refund of $2,219.9 for overcharges on the cost of equipment; and (c) Filing fee costs of $95. CATCHWORDS: Minor Civil Dispute – Consumer Trader – Australian Consumer Law – Whether the respondent, during trade or commerce, made false or misleading representation about goods or services – Whether the respondent engaged in unconscionable conduct, during trade or commerce, in connection with the supply or possible supply of goods or services to another person – Whether the respondent breached a statutory guarantee as to the provision of service APPEARANCES and REPRESENTATION (if any): The Applicant and the Respondent each appeared, the Respondent by phone. -- 1 of 7 -- 2 REASONS FOR DECISION Relevant Background Facts [1] The applicant is seeking an order to be made in his favour for the amount of $9,376.46 being: i. The cost for rectification works of $6,966.50; ii. A refund of $2,219.96 for overcharges on the cost of equipment; and iii. Filing fee costs of $95. [2] In 2003 the applicant engaged Placid Pools to construct a pool and supply all of the necessary filtration and cleaning equipment. [3] As a result of Tropical Cyclone Yasi, the applicant‟s home and pool was damaged. [4] The applicant sought to have the pool restored to its original condition. Being satisfied with the original works by Placid Pools the applicant claims to have engaged the respondent, Mission Beach Pool & Property Services, on the basis that it was an area agent for Placid Pools. [5] Mr Bushell states in his submissions to the Tribunal: “It was verbally agreed the respondent would carry out repairs to [the] cyclone damaged pool and equipment. [It was] also agreed the equipment replacement would be like for like or equivalent, [with] the only difference decided on was a more environmentally acceptable pump which was requested by us.” [6] The respondent supplied a quote, dated 21 February 2011, which was accepted and works commenced on or about 11 March 2011. The applicant was unable to supervise the respondent‟s works because his home was deemed unliveable, causing Mr Bushell to temporarily relocate to the Sunshine Coast while repairs were completed. [7] The respondent issued an itemised invoice on 28 March 2011. Upon Mr Bushell‟s return to the property to inspect works, he identified a number of concerns and brought it to the attention of Mr Christopher Steele of the respondent business. “…[T]he new light had not been installed as per manufactures specifications, the replacement pipe work was leaking severely at several joints, also that the equipment was now installed on loose bricks and not secure and that the pool was still badly stained and not cleaned to the condition we were assured it would be. We also questioned the respondent on the different type of filtration he had installed and he assured us what he installed was equivalent if not better than that which was originally installed.” -- 2 of 7 -- 3 [8] Mr Bushell alleges the respondent undertook to rectify these complaints and assured him that all work would be carried out as per their agreement. [9] The applicant returned to the Sunshine Coast and in his absence the respondent claimed to have rectified the works. Mr Bushell states he paid in good faith the invoice (save $500 which he intended to withhold until the works could be inspected on his return). [10] The applicant argues his “complaints had not been rectified or [the works] carried out to an acceptable standard.” [11] The matter was heard by the Tribunal; with leave granted to the respondent to appear during the proceedings by way of telephone. An unexpected and lengthy delay in the commencement of hearing1 resulted in the respondent unable to participate in the hearing and give oral evidence. Given the documentation evidence already filed by the applicant and provided to the respondent, it was agreed by the parties that the applicant would make oral submissions before the Tribunal and the respondent would be permitted to file written submissions. [12] At the conclusion of the hearing the Tribunal reserved its decision so it could consider the parties‟ submissions and evidence. Findings of the Tribunal [13] The standard of proof required to support a claim in the minor civil dispute jurisdiction is not as high as the standard „beyond a reasonable doubt‟ required in criminal matters. Instead the „civil standard‟ requires the applicant to provide on the „balance of probabilities‟ the respondent contravened the law. The High Court case of Briginshaw v Briginshaw2 is the leading case concerning the „civil standard of proof.‟ In this instance the Tribunal must, on hearing the evidence and in consideration of the seriousness and gravity of the case, be „reasonably satisfied‟ or feel „comfortably satisfied‟ it can reach „a correct and just conclusion‟ for each complaint as alleged against the respondent. A. Did the respondent make a false or misleading representation about goods or services? [14] Section 29 of the Australian Consumer Law (the “ALC”) sets out the circumstances in which a person must not make false or misleading representations during trade or commerce. [15] Specifically subsection 1(h), prohibits a person, in connection with the supply or possible supply of goods or services, or in connection with the promotion by any means of the supply or use of goods or services, to make a false or misleading representation that they have a certain sponsorship, approval or affiliation. 1 Caused by no fault of the parties. 2 (1938) 60 CLR 336. -- 3 of 7 -- 4 [16] In simple terms, misleading means conduct which has led the other party into error – with no element of fault. [17] The applicant argues he was misled by a representation made by the respondent that „Mission Beach Pool & Property Maintenance‟ was an agent for Placid Pools. In support of his claim, the applicant relies on a business card that was provided by Mr Steele during the course of their pre-contractual discussions. Clearly stated on the card is the wording “agent for Placid Pools”. [18] Mr Bushell submits: “As we had full confidence in Placid Pools and their integrity because of our previous dealings with them with the new construction of the pool (sic) we accepted the quotation in good faith and on the basis the pool would be returned to its condition prior to the event [Cyclone Yasi] and the equipment supplied would be equivalent to what was supplied in new (sic) construction by Placid Pools.” [19] Mr Steele offered no evidence disputing that the business card submitted to the Tribunal was not the respondent‟s or that it was not provided to the applicant at the time alleged. [20] In an email dated 6 September 2011, Mr Steele confirms that, “currently at my choice, I am not an agent for Placid Pools although I still have a close business relationship with them.” [21] The extent of this “relationship” is unclear. It is also unknown at what time the respondent ceased being an agent for Placid Pools. Yet despite the assertions put to Mr Steele (in the months that followed the dispute) that he misrepresented during the pre-contractual negotiations in February 2011 to being an agent, there is no evidence showing it was ever denied. [22] The weight of evidence produced by the applicant causes the Tribunal to be reasonably satisfied that, at the relevant time, the respondent falsely or misleadingly represented to having an affiliation or approval by Placid Pools. B. Did the respondent engage in unconscionable conduct as to pricing? [23] The applicant submitted to the Tribunal a quote from a third party, as evidence that the respondent had “wilfully and intently overcharged for all items supplied and installed.” The amount allegedly overcharged by the respondent was $2,219.96. [24] Section 21(1) of the ACL prohibits unconscionable conduct of a person, during trade or commerce, in connection with the supply or possible supply of goods or services to another person. [25] Although there is a general maxim in contract law of caveat emptor – „let the buyer be aware‟ – (ie the buyer must ascertain the good quality of the goods he or she purchases); the Tribunal notes the statutory factors listed -- 4 of 7 -- 5 in section 21(2) that may assist in determining whether a person has engaged in unconscionable conduct. [26] In particular: i. Subsection (2)(e): The amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the supplier; and ii. Subsection (2)(d): Whether any unfair tactics were used against the consumer by the supplier in relation to the supply of goods or services. [27] The applicant maintains that by virtue of the respondent misrepresenting itself as an agent for Placid Pools – the original builders of the pool – he believed that the pool would be restored to its original condition and standard, using like or equivalent equipment. As an authorised agent for Placid Pools, the applicant therefore believed that the respondent would act “with the same integrity of Placid Pools, therefore at the time we did not question [Mr Steele‟s] advice”, and thus accepted the prices quoted. These prices, it was later revealed, were over two thousand dollars the amount charged for equivalent services by another contractor. [28] On the issue of price, the respondent made no submissions or offered alternative evidence (ie a comparable quote from another contractor) to support his invoiced amount for services rendered. [29] Therefore from the available evidence, the Tribunal is satisfied to the requisite civil standard, that the respondent‟s conduct in all the circumstances was unconscionable. C. Did the respondent breach a statutory guarantee as to the provision of service? [30] The Australian Consumer Law sets a number of consumer guarantees relating to the supply of goods and services. [31] Relevant to the facts is the general guarantee pursuant to section 60 that services will be rendered with due care and skill. Additionally, section 61(2) guarantees fitness for purpose if: (a) A person (the supplier) supplies, in trade or commerce, services to a consumer; and (b) The consumer makes known, expressly or by implication, to the supplier the result that the consumer wishes the services to achieve; there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result. -- 5 of 7 -- 6 [32] The applicant relies on reports supplied by Turtle‟s Pool & Spa Technologies and Resolution Services, a QBSA licensed pool technician (accompanied by photographs) stating inter alia, that the installation of equipment is substandard and not carried out in a tradesman like manner. The latter report notes that the “pool light installation fails industry standards” and alleges the respondent is “currently unlicensed in Queensland to perform building work.” And on a visual inspection it was “noted installation of pumping equipment tacky, equipment placed on clay bricks no hold down provided.” [33] The report from Turtle‟s Pool & Spa Technologies noted, “major staining all over the surface of the pool. This indicates that the pool had not been pressure cleaned or acid washed correctly.” The reporter also questioned the installation of certain equipment, namely the chlorinator, Hurlcon Sand Filter and Hurlcon Pump – alleging that their size was not adequate or compatible for the task required and/or size of the pool. [34] The applicant states the respondent breached its agreement to install like for like, or equivalent equipment compared to the original equipment installed in the pool. [35] The proprietor of Turtle‟s Pool & Spa Technologies provided scathing reviews of Mr Steele‟s work finding “the method of installation and pipe work on the new equipment is not to the level which Australian Standards would require.” Further, “an obvious example suggesting that the installer had an ineptness in this field and a substantial lack of knowledge, was that thread tape was applied on Barrel Unions that include an „o‟ ring seal as per manufacturer standards.” [36] To support his claim that the works performed by Mission Beach Pool & Property Maintenance were substandard – and failed to return the pool to its condition prior to the devastation of Cyclone Yasi – the applicant filed a quote for the cost of rectification work by an independent contractor. [37] Conversely the respondent asserts3 “my pool experience stretches over 10 years and I have extensive experience in the industry not only residential pools, but major resort complexes with pools up to 680,000 litres. I am also a licenced (sic) pool safety inspector.” [38] Mr Steele made submissions questioning the size of the applicant‟s pool (ie of being no more than 50,000 litres and not the 80,000 litres as claimed). He also filed evidence contradicting that of the applicant‟s, in so far as the filter supplied (Eco 650) is a larger filter than what was originally installed (being a RX280) and therefore gives a better overall filtration. [39] Even if the Tribunal were to accept Mr Steele‟s evidence with respect to the filter and found it to be adequate (exceeding like for like); outstanding are the issues relating to staining, the installation of lighting, pumping equipment tacky and equipment merely placed on bricks with no hold down 3 In his email to the applicant dated 6 September 2011. -- 6 of 7 -- 7 provided. The respondent has failed to offer any substantial evidence or make submissions in relation to these former matters that would cause the Tribunal to question the accuracy of the reports and be satisfied that Mission Beach Pool & Property Maintenance‟s work was to the statutory standard. [40] The Tribunal therefore accepts the independent reports of Resolution Services and Turtle‟s Pool & Spa Technologies as evidence of the respondent‟s failure to render services with due care and skill. The Tribunal further finds that Mission Beach Pool & Property Maintenance‟s work was of such a nature and quality, that it failed to achieve the results which should have been reasonably expected (ie to restore the pool and equipment to its pre-event condition). Conclusion [41] For the reasons discussed above, the Tribunal finds in favour of the applicant. -- 7 of 7 --