Charges 10-12: Challinor
60 These charges relate to the property of Mr and Mrs Challinor at Toronto. Again, the elements of the offences charged are identical to those which I have found established in relation to the Van Der Lindens and the Uebergangs. The eleventh charge alleges conduct in association with Pro Contractor Group Pty Ltd and Lindsay McGoldrick, and the twelfth charge also alleges conduct in association with that company and Mr McGoldrick, together with "NSW Earthmoving". I shall explain the relevance of that business name as I recount the evidence.
61 In early February 2008, the Challinors moved in to their new home on the property. Shortly before doing so, in late January, Mr Challinor inspected the property to determine additional work which would need to be done once the house was finished, such as a driveway, paths, fences and the like. On that occasion he was approached by Mr Garay, who introduced himself as "Peter" and handed him what was said to be his business card. It was a card for Pro Contractor Group Pty Ltd. Mr Garay's name did not appear on it, but on it was written, "All construction and building work carried out by Lindsay McGoldrick", together with Mr McGoldrick's licence number. Mr Garay said, "If you need a driveway or anything else done, I can do it." Mr Challinor said that once he had worked out what needed to be done he would call Mr Garay.
62 A couple of days after they moved into the home, Mr Challinor called Mr Garay to say that he had decided what was to be done and asked Mr Garay to come to the property. Mr Garay arrived in the late afternoon and Mr Challinor showed him the work he wanted done, being a concrete driveway, footpaths, a box drain for stormwater runoff, a patio area, retaining walls, a boundary fence and a concrete slab for a water tank. He also wanted some turfing which, of course, Mr Garay was permitted to do.
63 Mr Garay said that he could do the work for $22,000 plus GST. Mr Challinor discussed that estimate with his wife and drew up a site plan to give to Mr Garay. He phoned Mr Garay to arrange his attendance the next day. On that occasion he presented him with the site plan and said that he and his wife had decided to have a full concrete footpath down the western side of the house. Mr Garay said that that would increase the price and that he could do "the whole job for $25,000." Mr Challinor said that if he would supply a written quote he would engage him to do the work. Mr Garay undertook to organise the quote, and repeated that undertaking on or about 10 February when Mr Challinor reminded him of it.
64 This evidence is the foundation of the tenth charge, that between about late January and 10 February 2008 Mr Garay represented to Mr Challinor, expressly or impliedly, that he was a licensed builder. It is also the source of the eleventh charge, that in the same approximate time frame Mr Garay, by himself and in association with Pro Contractor Group Pty Ltd and Lindsay McGoldrick, contracted with Mr and Mrs Challinor to undertake residential building work at the premises. Mr Challinor subsequently received a written quotation and contract from Mr McGoldrick, a matter to which I shall return.
65 It was Mr Challinor's evidence that on 12 February Mr Garay called him and asked him to draw a cheque for $2,200 for the excavator, trading under the name NSW Earthmoving, and to give it to that man at the site. Mr Challinor did so. Work continued over the ensuing weeks, and from time to time Mr Challinor paid for materials and for tradesmen by cheques in accordance with Mr Garay's directions. On occasions, he saw Mr Garay at the property apparently directing workers in their tasks.
66 On 29 February Mr Garay rang him to request a cheque for $5,000 to Pro Contractor Group so that he could pay his workers' wages, together with a cheque for $1,000 to L & G McGoldrick. Later the same day Mr Challinor gave him those cheques. In his affidavit Mr Challinor deposed that he did not ask Mr Garay who L & G McGoldrick were, but found out later after talking to his wife that "a Lindsay McGoldrick was working at my home for Peter."
67 Work continued, but Mr Challinor was dissatisfied with it in a number of respects. That is also a matter to which I shall return, although it will not be necessary to examine what Mr Challinor's complaints were. Ultimately, he complained to the Office of Fair Trading and came into contact with Mr Bruinenberg. By this time work had ceased, and on 23 April he met with Mr Garay and Mr McGoldrick, and later with Mr Bruinenberg, at the property.
68 This evidence gives rise to the twelfth charge, that between about 12 February and 23 April 2008 Mr Garay, by himself and in association with Pro Contractor Group Pty Ltd, NSW Earthmoving and Lindsay McGoldrick, undertook residential building work at the premises.
69 The effect of Mr Challinor's affidavit is that it was not until some time after work had begun that a quotation arrived at his home, together with a contract. This was said to be "a couple of days after the driveway was completed", but it is not clear when that was. As events were recounted in the affidavit, Mr Challinor noted that the documents were dated 12 February 2008, each specifying an amount of $12,000 only and signed by Lindsay McGoldrick. Mr Challinor thought this strange, as he had never met Lindsay McGoldrick and he had contracted with Mr Garay for work of the value of $25,000. Accordingly, he did not sign the contract.
70 In February 2008 Mr McGoldrick was working at the property adjoining the Challinors'. It was his evidence that on 12 February he introduced himself to Mr Challinor as Mr Garay's father-in-law. He said that he was the licensed builder who would be contracting to construct the driveway, front pathway, rear patio and "slab extension" for the water tank. Mr Challinor explained some details concerning the work he wanted, whereupon Mr McGoldrick told him that the total cost would be $12,000 and that he would drop off a quotation and contract the following day.
71 According to Mr McGoldrick, Mrs Challinor telephoned him later on 12 February to ask if he could supply the contract and quotation that day. He agreed to do so, and it was arranged that he would leave them inside the front security screen door if she was not at home when he called. There was no-one at the property when he arrived, and he found that the security door was locked. He left the documents in the electrical meter box, and later rang Mr Challinor to say he had done so. She called back to say that they were not there.
72 Mr Challinor, despite his affidavit evidence about the arrival of the contract and quotation at his home, agreed in cross-examination that it had occurred on 12 February in the manner described by Mr McGoldrick. Indeed, he also agreed that the documents were in fact retrieved from the electrical box that same day. I should note that Mrs Challinor did not give evidence.
73 The contract was on the same standard form as that used for the Van Der Lindens. It showed Lindsay McGoldrick as the contractor and attached a quotation, both documents being hand written by Mr McGoldrick. To confuse matters, the quotation showed as the contractor Lindsay McGoldrick as proprietor of Our Town Landscaping.
74 Mr McGoldrick's account continued that on the following day, 13 February, he again saw Mr Challinor at the property. He recommended that the box drain be installed in a different position because of difficulties with excavation where it was to have been placed, and also suggested that a proposed pathway across the front of the house be excluded. Mr Challinor agreed to these alterations. Mr McGoldrick said that they would need to be reflected in a new contract and quotation, although that would not affect the price of the work.
75 According to Mr McGoldrick, his daughter delivered the amended documents to Mrs Challinor the following day. She said that she and her husband would want to read the documents before signing the contract. On several occasions thereafter he asked for a copy of the signed contract to be returned to him for his records but, in effect, Mr Challinor fobbed him off and he never did receive it.
76 There is in evidence a second contract in the same form as the original, but referring to a different quotation. A copy of that quotation, altered in accordance with the changes said to have been agreed upon, is also in evidence. Both documents were dated 12 February.
77 The two quotations were written in a quotation book from which the original could be removed, leaving a carbon copy in the book. On the page opposite the copy of the first quotation is a sketch by Mr McGoldrick which appears to show, among other things, the position of the box drain. Also in evidence is a page from a notebook with notes in Mr McGoldrick's hand on both sides. On one side appear to be brief notes of work to be done, together with a small sketch showing the original position of the box drain. Mr McGoldrick said that he made those notes and drew the diagrams on both documents on 12 February, during his initial discussion with Mr Challlinor.
78 On the other side of the page from the notebook are further notes, apparently related to the changes agreed to on 13 February, together with another diagram. Those notes were made and that diagram was drawn, said Mr McGoldrick, on that day. On the copy of the second quotation there is a note by Mr McGoldrick, "Duplicate copy. Note changes to quotation 259871." That was the number of the original quotation.
79 In cross-examination, Mr McGoldrick agreed that he knew that Mr Garay had spoken to Mr Challinor before 12 February, and that the two had had discussions about the building of a driveway, a pathway, a patio area and a slab extension at the water tank in the backyard. He agreed that he did not tell Mr Challinor on 12 February that he would need to take measurements for the job, consider the cost of materials and estimate how long the work might take. He agreed that he knew that Mr Garay had arranged for excavation work for the driveway to commence that day. He said that he did not know that Mr Garay had already given Mr Challinor an estimate of the cost of the work in excess of $20,000. He denied having approached Mr Challinor on the basis that an agreement to undertake the work had already been negotiated by Mr Garay.
80 Mr McGoldrick's evidence was that he was present at the property when work was done, particularly work on the driveway and the installation of the box drain, assisting workers and giving them instructions. He agreed that he never asked Mr Challinor to pay him any money directly. The only matter relating to payment about which he spoke to Mr Challinor was to ask him to pay the concreters when they had finished their work. He had no recollection of a cheque for $1,000 to L & G McGoldrick, or a cheque for $5,000 to Pro Contractor Group Pty Ltd. He knew of that company, although he did not recall having seen a business card of the type which Mr Garay had given to Mr Challinor. He remembered Mr Garay saying that he was going to have some cards prepared, and acceding to Mr Garay's request that his name and licence number appear on them.
81 Asked about the pathway on the western side of the house, Mr McGoldrick said that that was not the subject of his quotation and had nothing to do with him. It was put to him that he and Mr Garay had deliberately divided up the work between themselves. This he denied.
82 The effect of Mr Challinor's evidence is that at all relevant times he dealt face to face only with Mr Garay, with the exception of an occasion when Mr McGoldrick phoned him to make a payment relating to the concreting. Otherwise, it was not until late in the piece, in pursuit of his complaints about the standard of the work, that he had contact with Mr McGoldrick. In cross-examination, he said that he had no recollection of conversations with Mr McGoldrick on 12 or 13 February. Equally, he said that he had no recollection of Mr Garay telling him that his father-in-law would be the builder doing the work. He saw Mr McGoldrick's name on the business card which Mr Garay had given him, and said that he knew that he was associated with Pro Contractor Group. He added, however, that "that was as far as my knowledge of him went."
83 In oral evidence, he said that over a period from mid February he saw Mr Garay at the property, apparently directing the work of various contractors. However, as I have recorded, it appears from his affidavit evidence that his wife had told him that Mr McGoldrick was working at the property. From some of his answers in cross-examination, it appears that he understood that Mr McGoldrick was working for Mr Garay as a sub-contractor. Asked about how he interpreted the initial quotation from Mr McGoldrick, he said:
" … I was dealing with and only with Peter Garay through Pro Contractor Group and in my mind this contract from Our Town Landscaping essentially was not for me, and as I had been asking Peter for a contract because I was contracting with him for the whole job not for subcontracts for various parts."
84 He acknowledged having received the second contract and quotation after Mr McGoldrick's daughter had delivered it. Of that second quote he said:
"This quote was closer to what I wanted, however as I have stated all along, I was dealing with Peter and this job, this quote does not cover everything that I was asking to be done. This quote only relates to a small portion of the job."
85 He also said that all changes to the work were discussed "through Peter". I have referred to the site plan which he gave to Mr Garay early in February 2008. In cross-examination, he identified a copy of that plan on which there were handwritten notations of his own. These appear to relate to various aspects of the work which he required to be rectified. He agreed that those notations were made after discussion with both Mr Garay and Mr McGoldrick, but when this occurred is not clear. It would appear to be at a late stage of the proceedings, again when he was conveying his complaints about the standard of the work.
86 He denied that Mr McGoldrick had ever asked him to return a signed copy of the contract. Pressed in cross-examination about why he had allowed the work to continue without having signed a contract, he said that he did not feel that he could stop the work until he had been supplied with a proper contract, adding that he had been asking Mr Garay since their initial meeting to provide a contract to him. When it was put to him that he had a contract from a licensed builder, he replied, "But I did not have a contract from the person who I was engaging to undertake the work for me." Later in his evidence, he added, "As far as I was concerned, Peter had contracted Mr McGoldrick to do some of the concreting work and I was essentially contracting with Peter to oversee and control the work on the site."
87 Early in March 2008, he recorded his concern about deficiencies in the work by drawing up a short agreement which set out those deficiencies and stipulated that no further money would be paid until they had been resolved. He signed the document on behalf of himself and his wife, as owners of the property. Mr Garay also signed it "on behalf of Pro Contracting Group". Those deficiencies are not relevant for present purposes. What is significant is the opening sentence of the document:
"This is to confirm that "Peter" from Pro Contractor Group, provided a verbal quote of $25,000 to complete the landscaping of [the Toronto address]."
88 Mr Marshall submitted that Mr Challinor was not a dispassionate witness, describing him as "defensive" and as "an advocate for his disgruntled cause". That was not my impression of him, even though he was clearly dissatisfied with the work done on his property. Generally, like Mrs Van Der Linden, he presented as an honest, intelligent and careful witness. Nevertheless, the inconsistencies between his affidavit evidence and his oral testimony to which I have referred are significant, and call into question the reliability of his recollection.
89 Not only did Mr Challinor accept that Mr McGoldrick's first quotation was delivered on 12 February, as he said. Mr McGoldrick's evidence that he discussed aspects of the work to be done with Mr Challinor on that day and on the following day is supported by the notes and sketches which are in evidence, together with the second quotation. I think it likely that the two men did meet on those days, notwithstanding Mr Challinor's lack of recollection of it. This has caused me to scrutinise his evidence with particular care.
90 There remains his evidence of his dealings with Mr Garay before 12 February, which I accept and which, in any event, was largely unchallenged. Mr Garay discussed with him the work he wanted done and provided an estimate of its cost. That estimate was revised after Mr Challinor said that he wanted a footpath on the western side of the house. Nothing that Mr Garay said suggested that these were merely rough estimates, and that Mr Challinor should expect a precise quotation from a licensed builder whom Mr Garay represented.
91 Mr Marshall relied upon the fact that Mr Garay gave Mr Challinor a card in the name of Pro Contractor Group which asserted that all construction and building work would be carried out by Lindsay McGoldrick, whose licence number was set out. That, however, falls well short of conveying to Mr Challinor that Mr Garay was doing no more than introducing him to Mr McGoldrick as the licensed contractor with whom he should deal. Moreover, I am satisfied that before 12 February Mr Challinor had engaged Mr Garay to carry out the work on the basis of the oral quote for $25,000. Mr Garay had arranged for excavation work to begin on 12 February. It is not suggested that Mr McGoldrick met Mr Challinor before that day and, if he were to be the licensed contractor for all the work on the property, it is inconceivable that he would have his first meeting with the owner and arrange for the supply of a quotation on the day that work began.
92 In all the circumstances, one can readily understand why Mr Challinor thought that Mr McGoldrick was a sub-contractor engaged by Mr Garay. The figure of $12,000 quoted by Mr McGoldrick was less than half the figure estimated by Mr Garay for the whole of the work for which Mr Challinor understood he had contracted. This is consistent with the fact that the pathway on the western side of the house and the fencing were not included in Mr McGoldrick's quote. It is also consistent with Mr Challinor's evidence, which I accept, that for the most part he dealt with Mr Garay and made payments at his direction. It is noteworthy that Mr Garay was prepared to sign the agreement of March 2008, which opened with the recital that he had provided a verbal quote of $25,000 to complete the work and which made no reference to Mr McGoldrick or Our Town Landscaping.
93 The evidence clearly admits of the inference, put to Mr McGoldrick in cross-examination, that he and Mr Garay had divided up the work between them. Certainly, Mr McGoldrick appears to have been an active participant in the work at the property. What arrangement there was between the two men is not clear, but it is also not material. What is clear is that Mr Garay represented himself as capable of undertaking the work, that he negotiated with Mr Challinor a global figure for completing it, and that he was involved to a significant extent in supervising its progress. I am satisfied beyond reasonable doubt that he was in breach of the orders in the manner alleged in these three charges, and knew that he was.
94 Charges 10, 11 and 12 are made out.