Ghiasvand v Concrete Menders Pty Ltd

1. On 10 October 2024, Special Magistrate Hassall handed down his decision in this matter: see Concrete Menders Pty Ltd v Ghiasvand & Ghiasvand; Ghiasvand & Ghiasvand v Flexible Constructions Pty Ltd [2024] ACTMC 23.

2. His Honour made the following orders: 1. Judgment be entered for the plaintiff against the first and second defendants in the sum of $73,944.35. 2. Pursuant to rule 1619, the first and second defendants are to pay the plaintiff pre-judgment interest in the sum of $12,370.98. 3. The defendants claim against the third party is dismissed. 4. Subject to order 5, the defendants are to pay the plaintiff’s and the third party’s costs of the proceedings, other than the costs associated with the vacation of the hearing on 2 April 2024. 5. Order 4 is vacated, and the costs referred to in order 4 shall be reserved in the event that any party notifies the Court in writing before 4.00pm on 18 October 2024 that it seeks a costs order different from that made in order 4. 6. Pursuant to rule 1622, I make the usual order as to post-judgment interest.

3. The appellants are unhappy with all of the orders, but identified the main issue as follows: It is submitted the central question on the appeal is whether the Special Magistrate was correct in finding on the balance of probabilities there was a formation of an oral contract for the provision of concrete services by the First Respondent for the Appellants.

4. The appeal is pursuant to s 274(2) of the Magistrates Court Act 1930 (ACT). The appeal is by way of rehearing.

5. The appellants were the first and second defendants in the court below. The first respondent was the plaintiff. The second respondent was brought into the proceedings by the defendants who sought a contribution or indemnity in case they were found liable to the plaintiff.

6. Because of the changing litigation titles of the parties, I will refer to them as follows: Mrs Kobra Ghiasvand and Mr Ali Ghiasvand are the appellants or the first and second appellants respectively. The first respondent is the concreter. The second respondent is the builder.

7. Mrs Ghiasvand and Mr Ghiasvand are mother and son. Mrs Kobra Ghiasvand’s husband is Mr Daryosh (Dani) Ghiasvand, who is also the father of Mr Ali Ghiasvand. Background

8. The appellants wanted to build a new residence on a property they owned in the ACT suburb of Taylor. They purchased the property in 2021. The specific date of settlement was 21 March 2021. They entered into a contract with the builder for the construction of the residence. The construction involved the laying down of a base or slab. This was concreting work which was performed by the concreter.

9. There was no dispute that the concreter performed the concreting work.

10. The concreter, in the court below, sued the appellants for the price of the work it had performed. The appellants said they were not obliged to pay because their agreement had been with the builder and that agreement had included the concrete work. Moreover, they had paid the builder for the concreting work, leading to the third party claim by the appellants against the builder.

11. The concreter said it was owed the amount stipulated in an invoice sent on 13 May 2022. The amount is $78,988.79. The liability for this sum was said to arise from an oral contract between the concreter and the appellants.

The appeal

12. As is often the case with oral contracts, the existence or otherwise of the contract depended upon the acceptance, or rejection, of the evidence of the asserted parties to the contract. In other words, the credit of the persons giving evidence about the existence of the contract was important. This was recognised by the parties and by his Honour. At [208], his Honour stated: Based on the matters set out in the preceding paragraphs, I have considerable doubts about the credibility and reliability of the defendants as well as, to a lesser extent, Mr Ghiasvand Snr. By comparison, I found the evidence given by the witnesses for the plaintiff and third party to be generally reliable. On that basis, to the extent of any inconsistency between the evidence of the defendants and Mr Ghiasvand Snr on the one hand, and the witnesses called by the plaintiff, I prefer the evidence of the plaintiff’s witnesses (also relied upon by the third-party builder).

13. His Honour also rejected the allegation that the appellants had paid the builder for the concreting. He stated at [299]: On balance, notwithstanding the issue by the third-party builder of the receipts which have been referred to, based on the material summarised in the preceding paragraphs, as well as my assessment of the relative credibility of the witnesses relied on by each party, and noting that the defendants bear the onus of proof on this issue, I cannot be satisfied on the balance of probabilities that the defendants made payment of any particular amount to the third-party builder in respect of the completion of the slab stage at the Taylor Site, nor (referring to the same work in another way) for the Concreting Work carried out by the plaintiff at the Site. As regards the individual payment of $10,000 on 20 October 2021, in the absence of any oral evidence at all from the defendants regarding this payment, and given its inconsistency with the defendants’ pleading as to when they supposedly paid for the completion of the slab stage, it is simply not possible to reach any firm conclusions.

14. There is no appeal against the credit findings or the builder payment findings. Success on the appeal would therefore entail: (a) a finding that there was no contract notwithstanding the appellants having not been believed as to the existence of the contract; and (b) the appellants receiving the windfall of the price of the concreting because they were not obliged to pay either the concreter or the builder.

15. The two consequences of success I have just mentioned are not put forward as bars to success, but rather as anomalies arising from the manner in which the appeal was run. In short, the appellants’ case was that, despite their lack of credit and despite the finding that they had not paid the builder for the concreting, the concreter had nevertheless failed to discharge its onus of proving the existence of the contract.

16. The notice of appeal filed on 5 November 2024 has seven grounds of appeal, but these include a number of sub-grounds. Both orally and in written submissions, the appellants, I think appropriately, made global submissions applicable to all of the grounds, at least those that were pressed.

17. In written submissions, it was stated that Grounds 4(c)(iv), 4(d), 4(e), 4(f) and 4(g) were not pressed. Ground 4(d) has some significance in that, during oral submissions, it was asserted that his Honour had inappropriately used coincidence evidence in reaching his conclusions as to the existence of a contract. I do not intend to deal with the submission because of the specific abandonment of the ground. I would also add that the oral submissions do not, in my view, establish the use of coincidence evidence as an ingredient of any finding.

18. Returning to the ‘rolled up’ submissions ultimately made, I think they can be summarised as follows: (a) His Honour’s findings were outside the pleadings and the particulars that had been provided. (b) There was no evidence of a representation by the second appellant to Mr Kehrig (the concreter’s principal). (c) The finding of a contract depended on a finding of agency (as between the appellants and the first appellant’s husband). In particular, there had been no pleading of the existence of an agency. (d) There had been no specific evidence about the price for which the concreting was to be done so that a vital part of the components of the oral contract was absent.

19. I will deal with each of the above submissions in turn.

His Honour’s findings were outside the pleadings and the particulars that had been provided

20. I was first taken to the original statement of claim which, in simple terms, asserts the existence of an agreement, the carrying out of the work and the rendering of an invoice which was not paid. Notably, the date of the agreement was said to be “on or around September 2021”.

21. On 20 June 2023, the appellants’ solicitors wrote to the concreter’s solicitors requesting particulars, especially about the contract. The reply, which took until 11 July 2023 to be provided, was not helpful. The often-repeated response was: “These are matters for evidence, not particulars.”

22. A second request was made on 18 July 2023. The response, on 2 August 2023, was more helpful. In this response, it was asserted that the second appellant had made an oral request to Mr Kehrig for the work to be done, which occurred at a “gathering in 2021”. The reply continued that an oral agreement had been made at the gathering and was followed by the appellants emailing the concreter “plans and drawings of the required works on 17 September 2021”.

23. The above was the state of the concreter’s claim when the hearing commenced on 2 April 2024. After some skirmishes about documents, counsel for the concreter made an application to amend the contract date from September to March 2021. The application was opposed, but was granted.

24. It also soon became clear that the gathering referred to by the concreter had occurred at Cotter Dam on 21 March 2021, the date of settlement of the Taylor property. It also emerged that the asserted date of the contract was not at the gathering at the dam, but rather over one or two dates in April 2021.

25. The ultimate finding by his Honour, as expressed at [236], was that the oral contract had been entered by the parties in “March or April 2021”.

26. Plainly, I think, the findings about the creation of the contract were inconsistent with both the statement of claim and the particulars provided before the hearing. This would have been a powerful point in favour of the appellants. However: (a) The ‘stretch’ of March into April, as expressed in the pleadings, was conceded by the appellants. This exchange occurred between his Honour and the appellants’ counsel during final submissions: MR MOFFETT: … And even if you expand upon the scope of the pleading, which I think is permissible to do, on or about March 2021, we inevitably pick up 12 April 2021, the meeting with Mr Shareifi. HIS HONOUR: So you accept that’s a legitimate expansion of paragraph 4. MR MOFFETT: Yes. (b) In relation to the particulars, there was this exchange: MR MOFFETT: This is in relation to particulars about the material facts which give rise to the oral contract. The particulars that are provided is that the representations were principally made by the second defendant, and you will see on page 40, the request was made orally from the second defendant to the plaintiff’s director during a discussion at the gathering in 2021. There is no mention of the meeting in April. HIS HONOUR: But you concede that that can be concluded. MR MOFFETT: Well, I accept it’s open to your Honour. (c) Lest there be any doubt about the extent of the concessions, there was also this exchange: HIS HONOUR: I mean, as you have said, the evidence was given, and the trial was conducted on a particular basis. MR MOFFETT: Yes. I’m not saying I’m disadvantaged in any way.

27. Clearly, the strength of the point concerning particulars and pleadings has been entirely dissipated by the concessions. The point must be rejected.

There was no evidence of a representation by the second appellant to Mr Kehrig

28. It is first of all necessary to look at his Honour’s findings, but noting that these findings were made after a comprehensive review of the evidence of all of the witnesses leading to the credibility findings which I have quoted above.

29. At [219], his Honour found that at the Cotter Dam gathering on 21 March 2021: the potential involvement of Mr Kehrig’s company Concrete Menders in the construction work to be undertaken at the Taylor Site was discussed in some way as between Mr Ghiasvand Senior, Mrs Ghiasvand and Mr Kehrig.

30. Then at [221]: I am satisfied that either Mr Ghiasvand Snr on about 1 April 2021, or Mr Ghiasvand Jnr on 7 April 2021, or both, rang Mr Kehrig to advise that they had located a potential builder, Mr Shareifi of Horizon Makers Construction Group, and to request formally that the plaintiff concreting company be involved in the concreting work required to be carried out for the proposed residence at the Taylor Site.

31. The reference to Mr Ghiasvand Snr was central to the agency point, to which I will return below.

32. The next step taken by his Honour was to identify that, on 12 April 2021, the second appellant “sent a text message to Mr Kehrig identifying the street address for the Taylor Site and attaching a PDF of architectural plans for the proposed house at the Site” (at [222]).

33. His Honour goes on (at [224]) to reject the second appellant’s evidence, as “wholly unconvincing” as to the reasons he gave for transmitting the plans.

34. Continuing with the path to the establishment of a contract, his Honour (at [226]) found that, at a meeting on 16 or 20 April 2021, Mr Kehrig met with the appellants and was introduced by the appellants to a Mr Shareifi (from an earlier proposed building company). Further, at this meeting the first appellant told Mr Shareifi that Mr Kehrig “will do the concrete works and will be responsible for it and this will not be included in the building contract with you. Concrete works will not be your concern.”

35. I note that his Honour referred to both appellants being at the April meeting. An examination of Mr Kehrig’s evidence shows that he only said that Mr Ghiasvand Snr and the first appellant were at the meeting. It is a little odd that the second appellant was cross-examined to the effect that he had attended the meeting against the background of Mr Kehrig having stated that the second appellant was not at the meeting.

36. At [233], after some discussion about whether there was any certainty in the terms, his Honour concluded that he was “satisfied that the terms were settled at around the time of the meeting with Mr Shareifi, namely, within the timeframe of ‘about March or April 2021’”.

37. Once his Honour accepted the evidence of Mr Kehrig about the second appellant sending the plans and then the first appellant attending the meeting on 16 or 20 April 2021, (including Mr Kehrig’s evidence about what was said at the meeting), there was sufficient evidence for his Honour to conclude that at least the bones of the agreement existed. These bones included the specific participation of the second appellant. The rejection by his Honour of the second appellant’s explanation for sending the plans squarely includes the second appellant in the formation of the contract.

38. In other words, the only logical explanation for the second appellant communicating with the concreter about the concreting work on 12 April 2021 is that the second appellant was aware of and complicit in the making of the agreement with the concreter.

39. If there is some confusion about who attended the meeting on 16 or 20 April 2021, in particular, whether the second appellant was present, I do not think the point is significant because the involvement of, and acceptance of an agreement with, the concreter by the second appellant had already been established by 12 April 2021. His Honour’s rejection of the second appellant’s explanation for sending the plans leaves no other viable conclusion other than the second appellant was party to an agreement with the concreter.

40. Accordingly, I do not see the relevance, if it be the case, of there having been no specific oral representation by the second appellant to Mr Kehrig at either the Cotter Dam gathering or the 16 or 20 April meeting. If it were necessary, which I do not think it is, to classify the sending of the plans as a representation, then I would reach that conclusion. It follows that the appellants’ second point also fails.

41. Before leaving this point, I think I should mention the submissions made by the appellants about the drawing of inferences against the appellants for their failure to call Mr Shareifi to give evidence. The appellants submitted that there were two examples of his Honour effectively suggesting that an inference should be drawn against the appellants for the above reason.

42. At [223], his Honour stated: Mr Ghiasvand Jnr has offered the explanation that Mr Shareifi independently selected Mr Kehrig’s company to do the concreting work for the Taylor Site, and that Mr Shareifi directed him to provide the PDF plans to Mr Kehrig. Mr Shareifi was not called to corroborate these assertions.

43. At [226], his Honour said: The defendants have offered no explanation as to why Mr Shareifi would have been in contact with details relating to the location of his office and as to the timing of “the meeting” if Mr Kehrig did not attend, nor indeed as to why Mr Shareifi was in contact with Mr Kehrig (a mere subcontractor) at all at such an early stage of a project which was not yet confirmed.

44. Without more, the above two quoted passages might suggest that his Honour had taken the view that the appellants ought to have called Mr Shareifi to give evidence and that their failure to do so gave rise to an inference that his evidence would not have assisted the appellants.

45. However, from [228] his Honour discussed the drawing of inferences and pointed out it could be argued that there was good reason why the concreter might have been expected to call Mr Shareifi. He then concluded (at [230]): Ultimately, in my assessment, the potential Jones v Dunkel inferences balance each other out and I am left with the objective and undisputed facts, the apparent logic of events, and my assessment of the relative credibility of each of the witnesses, each of which lead me to the conclusion which I have set out above.

46. His Honour’s conclusion is a clear indication that he had chosen not to draw “Jones v Dunkel inferences” against either party. He specifically stated that there were other reasons for him to reach his conclusions. The appellants’ complaint about inferences is not made out.

The finding of a contract depended on a finding of agency which had not been pleaded

47. This point starts with [221] of the judgment: I am satisfied that either Mr Ghiasvand Snr on about 1 April 2021, or Mr Ghiasvand Jnr on 7 April 2021, or both, rang Mr Kehrig to advise that they had located a potential builder, Mr Shareifi of Horizon Makers Construction Group, and to request formally that the plaintiff concreting company be involved in the concreting work required to be carried out for the proposed residence at the Taylor Site.

48. Later there are these paragraphs, [235] and [236] respectively: On this basis, whilst in my view it is possible that some of the terms of the oral contract were initially discussed with Mr Ghiasvand Snr, I am satisfied that it is appropriate to infer that Mr Ghiasvand Snr participated in the relevant discussions as an agent for his wife and son and that he relayed the relevant matters on to the defendants who approved them. To the extent that any matters may initially have been communicated only to Mr Ghiasvand Jnr, based on the evidence adduced from Mrs Ghiasvand in cross-examination that she intentionally clothed Mr Ghiasvand Jnr with both actual and ostensible authority to bind her in relation to the relevant negotiations. … Having regard to the matters set out above, in particular my assessment of the relative credibility of the witnesses, I am satisfied on the balance of probabilities that in about March or April 2021, the plaintiff concreting company entered into an oral contract with the defendants for the plaintiff to carry out the Concreting Work for reward. I am satisfied that both the intention to enter an enforceable bargain and the critical terms of the contract were explicitly discussed between Mr Kehrig and Ms Nazemi on behalf of the plaintiff on the one hand and the defendants and possibly Mr Ghiasvand Snr (as the defendants’ agent) on the other. The terms of the contract included that the work would be carried out for “about 60 grand” and that the defendants would pay the plaintiff concreting company “later”, when their financial situation had improved.

49. The concreter conceded that there had been no pleading or particular given that asserted that Mr Ghiasvand Snr had acted as agent for either or both of the appellants. It was further conceded that the appellants had never, at the hearing, made any concession that they took no point arising from any assertion of such an agency.

50. At first sight, I thought this point had substance because the apparent findings of agency were outside the scope of the concreter’s case. On closer inspection of the findings concerning agency, I think it is apparent that the suggestion of agency is put forward as no more than a possibility. Further, the creation of the contract does not depend on Mr Ghiasvand Snr being an agent. His Honour has made it clear that the contract was concluded between the concreter and the appellants, even if, in addition, Mr Ghiasvand Snr was also acting as their agent. In other words, the existence or otherwise of an agency has no bearing on whether the contract was formed.

There had been no specific evidence about the price for which the concreting was to be done so that a vital part of the components of the oral contract was absent

51. The appellants submitted that the creation of a contract needed, as an ingredient, evidence of an agreed price, this being a specific and important ingredient of any asserted contract.

52. I accept that the evidence about price is a little confusing. The invoice submitted to the appellants was for the sum of $78,988.79.

53. The only real evidence about price was contained in the oral evidence of Ms Nazemi. This witness was called by the concreter. She gave this evidence in chief: Did you have a conversation with Mr Kerigh [sic] about issuing a job for the Taylor – sorry, issuing a quote for the Taylor job?--- Yes. What did you say to Mr Kerigh? [sic]--- I – when I realised that we need to order concrete for a new job, first I asked Ben (Mr Kerigh) [sic] that, ‘Do we – do I need to send a code for this customer. He said, ‘No, he’s my friend and I need to help them so I don’t need to send a quote’, but I said the roughly price to them. I told them the roughly price to them. It is about 60-something.

54. The concreter submitted that Ms Nazemi’s evidence was to the effect that she had spoken to the appellants and given them the “60-something” figure. This interpretation of her evidence arose from the placing of the quotation marks, so that the words “but I said the roughly price to them” indicated that them were the appellants. I disagree with this interpretation and agree with the appellants that Ms Nazemi is relating, for the whole of her answer, her conversation with Mr Kehrig.

55. The appellants submitted that the effect of their interpretation was that the only evidence concerning price was hearsay evidence arising from the conversation between Ms Nazemi and Mr Kehrig. I agree that the evidence is hearsay. But I do not agree that the result is that there was no evidence of a price having been communicated to the appellants. This is because: (a) Ms Nazemi was the person in Mr Kehrig’s company who was responsible for the issuing of “invoices, payslips, or quotes”. She therefore had an interest in ascertaining the price that the company was to charge for work it was doing. (b) The contract was with the concreter (a company) and not personally with Mr Kehrig. Accordingly, whoever made the communication about the 60-something was doing so on behalf of the company. (c) No objection was taken to Ms Nazemi’s evidence as being hearsay.

56. Whether the “60-something” was communicated by Mr Kehrig, or by Ms Nazemi, does not really matter. The point is that his Honour accepted that the $60,000 estimate was a term of the contract. I repeat a portion of [236]: The terms of the contract included that the work would be carried out for “about 60 grand” and that the defendants would pay the plaintiff concreting company “later”, when their financial situation had improved.

57. I therefore do not accept that an essential ingredient of the contract, namely price, was missing from the agreement between the parties. While “60-something” is not the precise amount of the later invoice, it was obviously put forward as an estimate and it is not an estimate that is so different from the final price that it could be described as a different price.

Conclusions and orders

58. I have rejected each of the four points relied upon by the appellants. Although some of the orders sought in the notice of appeal relate to the builder, no submissions were made against the builder. The builder has the same representation as the concreter. I can see no basis upon which there should be any costs order in favour of the builder. As for the appeal against the concreter, obviously the appellants should pay the costs of the appeal.

59. I make the following orders: (1) The appeal filed on 5 November 2024 is dismissed. (2) The appellants are to pay the first respondent’s costs of the appeal. (3) No order is made as to the costs of the second respondent.

I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim. Associate: Date: