Allied Rubber Technologies (Australia) Pty Ltd v PolyFresh Industries Pty Ltd [2012] QCAT 272

CITATION: Allied Rubber Technologies (Australia) Pty Ltd v PolyFresh Industries Pty Ltd [2012] QCAT 272 PARTIES: Allied Rubber Technologies (Australia) Pty Ltd ABN 26009779908 v PolyFresh Industries Pty Ltd ABN 74138608045 APPLICATION NUMBER: MCDO3634-11 MATTER TYPE: Other minor civil disputes matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Paul Favell, Member DELIVERED ON: 19 April 2012 DELIVERED AT: Brisbane ORDERS MADE: The respondent pay the applicant $1,094.10 by 4pm on 11 May 2012. CATCHWORDS: Minor Civil Dispute – contract to supply goods and services APPEARANCES and REPRESENTATION (if any): APPLICANT: Stephen Hunter, owner of the applicant, by phone RESPONDENT: Bill Edgar director of the respondent REASONS FOR DECISION [1] In this matter the applicant claims $2,949.10 as an amount said to be owing for the manufacture of a pipe insert grommet as per a supplied drawing and for the tooling of a single cavity compression mould. That claim is set out in attachment 3 to the application in a quotation dated 17 December 2010. That quotation then became tax invoice 48008. [2] The applicant also claims a filing fee of $95.00 and interest at the rate of 10% for 215 days. -- 1 of 3 -- [3] When this matter was called on for hearing the applicant did not appear and the applicant company was contacted by phone. Subsequently, Mr Stephen Hunter, the owner of the applicant, appeared by phone. [4] The evidence relied on by the applicant was attached to the application. [5] The circumstances surrounding the supply of the grommets and necessary tooling was that the general manager of the applicant, Jamie Taylor was contacted by Ian McKay said to be an inventor/shareholder from Drainguard/PolyFresh in early November 2010. Mr McKay requested a meeting to discuss a new product he wanted manufactured. Such a meeting was arranged in late November 2010 at the residence of Mr McKay. Mr McKay produced sketches of an idea for a grommet he required and Mr Taylor took measurements and was able to supply a CAD drawing for approval. [6] The drawing was faxed to Mr McKay’s home address and a copy is attachment 1 to the application. Mr Taylor followed that fax with a phone call wherein he was told that Mr McKay was happy with the design and wished to proceed with a quotation to do a prototype run for the trial. Attachment 2 is that quote. A second quote, attachment 3, was given for a production run with large volumes. Mr McKay indicated that an order to proceed would soon follow and would be supplied by the company director of the respondent, William Edgar. Mr Edgar provided a document indicating that PolyFresh Industries (the Respondent) would like to proceed with the following: “Item 1 – pipe insert grommet as per drawing supplied EPDM60- 65STH (Black) MOQ-10, price $15.50, unit-EA. Item 2 – tooling: single cavity compression mould, MOQ-1, price $2650 unit-EA.” That is attachment 4. [7] After the order was provided, the tooling was manufactured and the first prototype produced for trial. Mr Taylor then phoned Mr McKay who came to Brisbane along with mating parts to evaluate the grommets. He indicated that he was happy and there were only slight modifications to the tooling required. He signed an invoice, a copy of which is attachment 5 and took the prototypes with him. [8] The invoice remained unpaid and on 3 June 2011 the applicant contacted William Edgar to request payment. Mr Edgar initially denied the order, then indicated that the job was not complete and the invoice would remain outstanding until his inventor/shareholder Ian McKay was satisfied. [9] On 17 June 2010 the Applicant emailed Mr Edgar various emails which they said showed that Mr Edgar had approved the work and requested them to proceed as per the quote. [10] In June 2011 Mr McKay came to Brisbane to meet with Mr Taylor and expressed happiness with the grommets produced and indicated that he was satisfied with the requirement from their meeting in November. He took the final prototypes and all associated components used in the grommet. [11] After further requests to be paid were made, Mr Edgar by a mobile telephone call on 6 September 2011 made it clear that no payment would be forthcoming any time soon. Attachment 6 is an email sent by Mr Taylor after that conversation. -- 2 of 3 -- [12] Attachment 7 is a set of conditions which form part of the quotations given. None of the quote, the tax invoice or the conditions attached to the quotations has any mention of interest on any debt being incurred. [13] In response to the application the respondent contended the following: “PolyFresh Industries conducted its own investigations into the pathetic service and products supplied by Allied Rubber and found that Allied Rubber was not entitled to receive full payment for such pathetic services rendered. PolyFresh Industries did however reluctantly pay the sum of $1,950.00 of the invoice amount of $2,915.00. PolyFresh industries view, is that this matter is now closed. Any further action from Allied Rubber will not be adhered to, REGARDLESS.” [14] During the hearing I asked both sides if they wanted the matter to be adjourned so that Mr Hunter could appear in person and present any further material and Mr Edgar could produce evidence supporting the reasons for non-payment. Mr Hunter wanted to proceed. That offer was declined by Mr Edgar who said that if the matter was adjourned he was immediately going to his solicitor, barrister, and QC. He also indicated that if the matter was adjourned, he would not be returning. [15] The hearing continued and both sides were given the opportunity to provide any further material. During the hearing, the position of Mr Edgar seemed to change a little in that he then sought to contend that he did not know that the grommet had been given to Mr McKay and Mr McKay has now left the company and accordingly the respondent should not have to pay. He admitted that Mr McKay was a shareholder and had negotiated for the supply of the grommet. He said the goods were given to the shareholder but admits that he got some of the goods but it was after 8 months and says it was no good to him. [16] The material supports the fact that there was a request by Mr Edgar for a quote. That quote was provided and accepted. The uncontested evidence is that the work the subject of the quote and the subject of the invoice was carried out. I am satisfied that the goods were supplied to the respondent. In my view, there is a contractual obligation upon the respondent to pay that which was set out in attachment 5. The respondent has not produced any evidence which would detract from that obligation except that I accept an amount of $1,950.00 of the invoice has been paid. The difference between the claimed amount and the outstanding amount after $1,950.00 is deducted is $999.10. [17] As I have said there is no provision for a calculation of interest. This claim was not filed until 11 November 2011 and there has been a substantial payment made in the interim. I do not know when the payment was made and in the circumstances I do not intend to award interest. [18] I order that the respondent pay the applicant the sum of $1,094.10 that being the outstanding sum together with the filing fee of $95.00 by 4pm on 11 May 2012. -- 3 of 3 --