John Jacob Morrison trading as Bellingen Plumbing Services ABN 31 678 436 659 v Sproule

John Jacob Morrison trading as Bellingen Plumbing Services ABN 31 678 436 659 v Sproule - [2022] NSWLC 5 - NSWLC 2022 case summary — Zoe

B. EVIDENCE

The plaintiff's evidence consisted of the following: 1. Exhibit 1 - statement of John Morrison dated 7 July 2022; 2. Exhibit 2 - statement of John Morrison dated 21 July 2022; and 3. Exhibit 3 - statement of Francine Higgins dated 7 July 2022.
The defendant's evidence consisted of the following: 1. Exhibit A - statement of Cassandra Sproule dated 7 July 2022; 2. Exhibit B - statement of Cassandra Sproule dated 21 July 2022 in reply to the statement in Exhibit 3; 3. Exhibit C - statement of Cassandra Sproule dated 21 July 2022 in reply to the statement in Exhibit 2; and 4. Exhibit D - Statement of Diana Sproule dated 7 July 2022.
The plaintiff's evidence can be summarised in the following way. The plaintiff has several plumbing related businesses and had previously carried out work for the defendant in relation to a pump out of the septic system on the property in Dondingalong on or about 16 April 2021. Relevantly, on or about 8 June 2021, the plaintiff attended the property and had a discussion with the defendant and her former partner, Daryl. The defendant told the plaintiff that there was an issue with the dwelling not having council approval, the septic system had been failed by council, and that they needed a new system installed and inspected by council for approval.
After showing the plaintiff where the existing septic system was located, a conversation occurred in which the plaintiff told the defendant and her partner that the septic system was deficient. The defendant's partner then showed the plaintiff on his phone a wastewater report carried out by a company known as 'Rosewood'. The plaintiff asked that the report be emailed to him, and he identified a preferred location for the new system on the property.
The conversation then continued in which the plaintiff said a new design could be submitted to Mr Duerinckx, so that he could adjust it to suit the plaintiff's requirements and then submit an amended design to council for approval. The plaintiff said that such a report would cost around $2,000 to prepare, as well as for the plaintiff to review the report and carry out any administrative work relating to the job. The plaintiff also identified a $700 submission fee to council. The defendant responded 'Ok, let's go ahead with that'. This is set out in paragraph [18] of Exhibit 1, being Mr Morrison's statement. The plaintiff then said he would contact Mr Duerinckx and get him to call the defendant to arrange a site view.
Shortly thereafter, the defendant emailed the plaintiff a copy of the Rosewood report. The plaintiff says that the Rosewood report did not allow for a trench system, which he had understood from his discussions with the defendant was the type of system she wanted for the property.
Ms Higgins, the plaintiff's wife who manages the administrative side of the plaintiff's various businesses, had a conversation with the defendant on or around 14 May 2021 in which the defendant said she was not happy with the Rosewood report and Ms Higgins said a new report would be necessary. Ms Higgins said that no quote would be provided for the system unless and until it was approved by council because of the prospect of amendments to the system arising from the conditions of any council approval. This fact was also confirmed in the plaintiff's statement.
Mr Duerinckx apparently attended the site on 15 June 2021 to conduct an inspection. On 9 July 2021, Mr Duerinckx emailed the plaintiff and the defendant attaching draft layout plans and invited the defendant to confirm if she was happy with the layout and that he would finalise the redesign report and issue it to the plaintiff
Mr Duerinckx sent his report and invoice to the plaintiff on 13 July 2021 and the plaintiff paid the invoice in full on 13 July 2021. The defendant has not reimbursed the plaintiff for this sum
I now summarise the defendant's evidence. She is the daughter of the subject property owner. She said that on 8 June 2021, the plaintiff came out to the property and advise him of the Rosewood report, but that they had a preference for a trench system which was not identified in the report. The defendant asked the plaintiff what she could do about installing a trench system and the likely cost. The plaintiff replied 'no worries, leave it with me. I will get someone to come out and have a look'. She said she received a phone call from Mr Duerinckx asking if someone was at the property so that he could go and have a look at it. The defendant said to him that there would be someone at the property. The defendant says that at no time did she request a wastewater report from the plaintiff, or for the preparation of such a report by a third party. She further says she had no authority from her mother, the property owner, to do anything other than obtain a quote to install a new septic system acceptable to the council. The defendant further says that in her conversation with the plaintiff, there was no mention of money payable or a person by the name of Strider Duerinckx when initially discussing the location of the septic system. The defendant says she had never heard the name Strider Duerinckx prior to that mention of his name and she believed he was an employee of the plaintiff's company. The defendant says that the plaintiff did not mention the engagement of an engineer, nor did he mention any amended design. The defendant denied giving any approval to go ahead with any work associated with commissioning a new wastewater report.
Finally, Diana Sproule, the property owner, says she never authorised her daughter or any other person to seek a wastewater report from the plaintiff.

[4]

C. ISSUES AND LEGAL PRINCIPLES

The issue in this case is whether the plaintiff and the defendant entered into a contract during the course of their conversation on 8 June 2021 requiring the defendant to pay the plaintiff the sum of $2,035 in exchange for the commissioning and preparation of the wastewater report by Mr Duerinckx which would ultimately enable an application to be made to the local council for approval of a new septic system on the subject property.
Consistent with the practice in the Local Court Small Claims Division, none of the witnesses were cross examined. The court must therefore resolve the differences between the parties' competing accounts without the evidence being tested in this way.
The plaintiff's claim is one involving an alleged breach of contract. He bears the onus of proof, and must prove the each of the elements of that cause of action on the balance of probabilities. I note the decision of Hammerschlag J in John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94]. In that decision, the court observed that where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. I also note the decision of then Ward CJ in Eq in Anthony v Morton [2018] NSWSC 1884 at [398] endorsing the summary of the principles in the John Holland decision.
There is no dispute in this case that the defendant has not paid the sum of $2,035 to the plaintiff, being the cost invoiced to and paid by the plaintiff for Mr Duerinckx's wastewater report. The central question is whether there was any contractual obligation for the defendant to pay this sum to the plaintiff by way of reimbursement.

[5]

D. FINDINGS

In this case, I have the plaintiff's evidence asserting the existing of an oral contract, and the defendant's evidence denying the existence of any such contract. Both parties provided different accounts of the content of the critical conversation which occurred on 8 June 2021. Neither party has adduced any evidence from a witness, particularly an independent witness, relating to the content of that discussion. I note that, insofar as concerns the plaintiff, Ms Higgins was not present during that conversation. The defendant's partner Daryl was apparently present during the conversation, but he has not given evidence, for the reasons set out in the defendant's statement in Exhibit C at par [26] concerning the acrimonious end of their relationship.
Further, on my review of all the evidence, including the exchange of correspondence between the parties after the conversation on 8 June 2021, which is annexed to the tendered statements, there was no form of confirmation or follow up of the 8 June 2021 conversation, either expressly or inferentially, that the conversation was to the effect of that set out in paragraph [18] of Exhibit 1, being Mr Morrison's statement. Nothing in the material constitutes either an admission by the defendant about the existence of a contract in the terms described in paragraph [18] of Exhibit 1, or an acknowledgment of some kind as to those terms.
Further, there is nothing inherently or objectively implausible about the defendant's denial of the existence of a contract with the plaintiff to pay for Mr Duerinckx's wastewater report, when regard is had to the full context in which the defendant initially approached the plaintiff to obtain assistance in securing approval from the local council for a new septic system. The defendant's evidence that she simply assumed that the reference to Mr Duerinckx in the 8 June 2021 conversation was a reference to one of the plaintiff's employees is plausible. It is also plausible that she thought Mr Duerinckx's interest in contacting her was to initiate discussions and a site inspection prior to carrying out any further substantive work relating to the new septic system, including the preparation of any reports. Although the defendant's existing wastewater report from Rosewood did not seem fit to justify a trench septic system of the kind the defendant had envisaged, that does not on balance lead to the conclusion that the conversation in paragraph [18] of Exhibit 1 was likely to have occurred in those terms.
As I observed earlier, the plaintiff bears the onus of proving a breach of contract on the balance of probabilities. This case highlights the difficulties when parties do not formalise an agreement in writing, or follow up any oral discussions that may take place which may involve expenditure of not insignificant sums of money. The conversation on 8 June 2021 may have occurred in the terms set out in the plaintiff's evidence, but in the absence of any corroborative evidence of some kind, or something which might suggest the defendant's version denying that conversation was in some way inherently implausible, I cannot find on the balance of probabilities that an oral contract in those terms had been entered into.
Expressed another way, the two people who have given evidence in these proceedings and who were present during the 8 June 2021 conversation cannot agree on the terms of the conversation, and therefore absent something persuasive in the plaintiff's case, it is understandable why the court cannot be satisfied on the balance of probabilities that the plaintiff's version must be preferred.
For these reasons, it is also unnecessary to determine the defendant's further defence that she had no authority from the property owner, her mother, to obtain other than a quotation for the installation of an onsite septic system.
Accordingly, the plaintiff's claim fails, and the Statement of Claim will be dismissed. I note the defendant is also entitled to her costs in the sum of $944.40 plus GST in accordance with regs 2.9(2)(d) and 2.9(3)(b) of the Local Court Rules 2009 (NSW) and Sch 1, Pt 3 Nos 3 and 4 of the Legal Profession Uniform Law Application Regulation 2015 (NSW).

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