When her husband returned on the weekend they discussed the matter and decided that they would not be proceeding with a fee agreement due to what they considered to be a conflict of interest with Mr Ryan. She said approximately two weeks later she received an account in the mail from the respondent requesting the sum of $1608.75, and about the same time, a bundle of photographs turned up. Those photographs were marked (Exhibit 3). She said that when she had a conversation with Mr King over the phone prior to his attending her home, nothing was said about fees. She said Mr King did not advise her that he was a building consultant who charged $220.00 an hour. She said she understood (from her conversation with Mr Ryan), that Mr King was a pest controller. She said when Mr King left her home she understood that "things would stop" and that "we were not proceeding until my husband had an opportunity to speak to Mr King". The applicant tendered a document given to her by Mr King titled: Building Consultants Fee Structure, of some eight pages that was tendered into evidence and marked (Exhibit 1).

Prior to his departure, Mr King said that he would fax the applicant a letter setting out what he would require by way of access. That fax was tendered into evidence and marked (Exhibit 2).

Mr Zanuttini (engineer and brother in law of the applicant), gave evidence that he attended the site at around 3pm on 13th November, following a request from the applicant. He said the applicant made him aware that Mr Ryan had six months earlier treated the premises for termites.

He said that as Mr Ryan had recommended Mr King, he was concerned that should the applicant at some future time choose to take action against Mr Ryan, then maybe there would be a conflict of interest between any report prepared by Mr King and any evidence given by Mr Ryan. Mr Zanuttini said that he was present when Mr King arrived at about 4:30pm and noted that Mr King gave the applicant the fee agreement (Exhibit 1) "way towards the end of the inspection".

Mr King gave evidence that by implication he identified himself to the applicant as a senior building consultant when he gave her the fee agreement to sign on the 13th. He said he was on site for about two and a half hours and he had also spent two and a half hours travelling to and from the site.

Mr King conceded there was nothing in the fee agreement with respect to travelling time. He said that he believed that from the telephone conversation he had with the applicant she understood that there would be fees although he did not discuss specifics. He said he was sure that the applicant understood he was "expensive" but could not explain how she understood this. He conceded there was a misunderstanding between the applicant and himself, but not to the extent suggested by the applicant. He tendered the fee invoice marked (Exhibit A) and a statement of account marked (Exhibit B). He also gave some explanation as to the length of time he spent on site and the break-up of the fee claimed.

The first issue to consider is whether the communication between the parties on 13th amounted to a contractual commitment or whether the parties were still in the process of negotiating a contract when the respondent left the applicant's premises later that day: the test being the objective intentions of the parties. Whether the parties have reached final agreement, or intend to postpone contractual relations or the operations of a particular term, is ultimately a question of intention, objectively ascertained from the language the parties have used (Masters v Cameron) or inferred from their conduct (Sheehan v Zaszlos).

Applying the reasoning in the abovementioned authorities, the Tribunal finds that the parties did not intend to create legal relations on 13 November 2002.

However, notwithstanding the findings above, if there was a contract in existence, the question arises, were the parties mistaken as to what was offered and what was accepted. That is, would a reasonable observer had concluded that what the applicant thought she was getting was something quite different from what the respondent was providing. If so, the consequence of such a mistake is no contract because, on an objective test, what was accepted was not what was offered.

It is clear from the evidence that the applicant thought she was obtaining from the respondent advice with respect to the eradication of a termite infestation, (which was beyond the capacity of Mr Ryan to deal with). On the other hand the respondent appears to have understood that the applicant was seeking his services in order to prepare a comprehensive building report, perhaps for the purposes of litigation. In such circumstances, the Tribunal finds that the parties were at cross-purposes, neither knowing that the other is mistaken.

Accordingly, for the reasons set out above the Tribunal finds that the sum of $1,608.75 is not due and owing by the applicant to the respondent.