Victorian Civil and Administrative Tribunal|2015-11-04

For the reasons set out in paragraph 171, I reject his claim for $1,595.00.

The claim for overcharge on the propeller is put in this way. The quote of 7 November 2014[46] said that labour and materials for the supply delivery and installation of a propeller would be $3,850.00, whereas the file note[47] of the 6 November 2014 conversation recorded the cost of a 20 inch propeller at $3,377.00. I reject this claim. Mr Tickner's argument is really one of "common sense", which can be quite dangerous. Mr Tickner assumes that a 19 inch propeller must be cheaper than a 20 inch propeller. Certainly the figures he had written in his file note showed that the cost decreased with the diameter of the propeller. However the file note does not refer to a 19 inch propeller at all, and nor does it refer to particular brands or manufacturers. It is conceivable that a smaller propeller could cost more.

In these circumstances I reject the last two claims of Mr Tickner to deductions. I will make an order in proceeding C2803/2015 that Mr Tickner pays $39.50 to Boat, and I will declare in proceeding C140/2015 that $39.50 is the extent of his liability.

Because both parties had legal practitioners, I said at the conclusion of the hearing that I would reserve the question of costs and reimbursement of filing fees. Clearly the parties may have exchanged offers of settlement under section 112 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The parties may also seek to rely on section 109.

If the Tribunal awards costs it usually requires them to be assessed by the Costs Court. Accordingly, if either party applies for costs they should not file a "taxable bill" with the Tribunal.

[4]For example, whilst at paragraph 111 of Dura Dixon J exercised a discretion not to exclude the evidence of one expert (Edwards) who had not complied with the Supreme Court's Expert Code (similar to PNVCAT2), at paragraph 114 he found that another witness (Browning) was not an expert in the relevant subject and that his evidence was not admissible.

[6]In Horton v Jones [No 2] [1939] NSWStRp 35; (1939) 39 SR (NSW) 305, Chief Justice Jordan said, "If a person employs another to do work ... nothing being said as to the wage ... the law implies a promise to pay a reasonable wage ... and an action may be maintained for quantum meruit".

[7]In Hansen v Mayfair Trading Co Pty Ltd [1962] WAR 148, the plaintiff, an accountant, had "thrust himself and his services upon the defendant". Some of the plaintiff's claim was denied by the Court, but the plaintiff was awarded payment for a category of services in relation to which the defendant appeared to have accepted that the plaintiff was acting on its behalf, and which provided some benefit to the plaintiff. In Re Cleadon Trust Ltd [1939] Ch 286, Greene MR said, "If a person knows that the consideration is being rendered for his benefit with an expectation that he will pay for it, then if he acquiesces in its being done, taking the benefit of it when done, he will be taken impliedly to have requested its being done; and that will import a promise to pay for it".

[9] Mrs Elisha Tickner was present at the hearing, but the parties agreed that she was not required to give evidence

[39]Exhibit R 4, video almost 3 minutes long

Tickner v The Boat Clinic Pty Ltd (Civil Claims) [2015] VCAT 2062 (4 November 2015)

Mr Tickner notes that Boat has not brought a claim on a quantum meruit, so that the Tribunal is not called upon to assess a reasonable sum for Boat's work. Put another way, he submits that the risk associated with the cost of the work blowing out falls on Boat and not Mr Tickner. In the alternative he says that if the Tribunal is required to consider the amount to be paid to Boat, pursuant to the contract and not pursuant to a quantum meruit, it is still required to consider the reasonableness of the method of work adopted and the time spent, and that Boat is not to be paid for working inefficiently. In this respect Mr Tickner cited Riverside Motors Pty Ltd v Abrahams [1945] VLR 5 which was cited in Sea Eagle Pty Ltd v Redford and Dick [2012] TASSC 41.

Tickner v The Boat Clinic Pty Ltd

At a glance

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Decision date

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Judgment (12 paragraphs)

Parties

Cases Cited (2)

Tickner v The Boat Clinic Pty Ltd (Civil Claims) [2015] VCAT 2062 (4 November 2015)