Noel Fuller Holdings Pty Ltd v. K H Equipment Pty Ltd [2008] QDC 188 (4 August 2008)

Last Updated: 11 August 2008

DISTRICT COURT OF QUEENSLAND

CITATION:	Noel Fuller Holdings Pty Ltd v K H Equipment Pty Ltd [2008] QDC 188
PARTIES:	NOEL FULLER HOLDINGS PTY LTD (Plaintiff) v K H EQUIPMENT PTY LTD (Defendant)
FILE NO/S:	SD 35 of 2007
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	4 August 2008
DELIVERED AT:	Southport
HEARING DATE:	25 July 2008
JUDGE:	Kingham DCJ
ORDER:	1. The claim is dismissed. The plaintiff must pay the defendant’s costs as assessed.
COUNSEL:	Mr Alexander for the plaintiff Mr Coveney for the defendant
SOLICITORS:	Michael Sing lawyers for the plaintiff Bell Legal Group for the defendant

[1] The plaintiff claims $74,800 as a debt alleged to be payable by the defendant pursuant to an agreement. The sole directors of the parties are, for the plaintiff, Mr Fuller, and for the defendant, Mr Huebner. In those capacities, Mr Fuller alleges that they reached an agreement that Mr Huebner would organise for the construction of a retaining wall along the common boundary of their adjacent properties and that they would share the costs. The wall has been completed. Mr Fuller says $74,800 is half the cost of construction. Mr Huebner denies any agreement was reached about either constructing or sharing the costs of constructing the wall.
[2] The defendant has owned the property at 539 Southport – Nerang Road, Molendinar since 1972. It adjoins a property at 114 Harper Street, Ashmore which the plaintiff has owned since August 2000. In 1972, the natural profile of the land sloped gently uphill from the defendant’s property into that now owned by the plaintiff. Over many years, before and since the plaintiff owned it, a large volume of rubbish and fill has accumulated on the plaintiff’s property along its boundary with the defendant’s property. By 2006 the accumulated material had raised the level of land along the boundary by some metres, Mr Huebner estimated 10 metres. He has long held concerns about the safety and stability of that fill and the impact of it on drainage on his property. Over more than 10 years, he has repeatedly expressed those concerns to the Gold Coast City Council.
[3] Mr Fuller alleges the agreement was reached during a conversation with Mr Huebner in or about February or March of 2006 in a building he referred to as Mr Huebner’s office on the defendant’s property. By then, some of the accumulated rubbish had already been removed, at no cost to either party. He gave evidence that he approached Mr Huebner and told him they should build a wall to fix the problem. He said he told Mr Huebner the cost would be in the vicinity of $100,000, based on a quote he had from a contractor. He alleged that Mr Huebner said the cost was too much and, in response, he told him Mr Huebner that he should get a quote. Mr Huebner then agreed to share the cost of the retaining wall and accepted the quote to get the job done provided it was not more than $100,000. Mr Fuller told Mr Huebner there would be over 1,000 tonnes of rock which would need to be factored into the price and which was separate from the contractor’s quote. Mr Fuller argues this conversation evidences an agreement that the defendant would pay half of the costs of constructing the retaining wall.
[4] Mr Huebner denied that conversation. He said his first discussion with Mr Fuller about the costs of the retaining wall was in June 2006, not in February or March. By then the work was already underway and he and Mr Fuller talked across the boundary of their properties. Mr Fuller asked him if he would pay half the costs of the wall. Mr Huebner said he told him he would not do that as the wall was to fix a problem that Mr Fuller had inherited.
[5] Mr Huebner gave evidence that there was another conversation towards the end of July witnessed by his nephew, Robert Huebner, and his caretaker, Fritz Callus. He said that Mr Fuller again asked him if he would pay half the costs of the wall and Mr Huebner again said he would not because it was not his problem and he had no responsibility for it. That conversation was confirmed by the evidence of Robert Huebner, Fritz Callus and Mr Fuller.
[6] Mr Huebner said that he was not shown a copy of any quote, plans or any other documents associated with the wall during either conversation or at any other time. After the wall was completed, Mr Fuller approached Mr Huebner twice at his home and again requested he pay half the costs. On both occasions Mr Huebner declined to do so saying that it was none of his concern. Those conversations were also confirmed by Mr Fuller.
[7] There was no witness to the alleged conversation of February or March 2006. The conflict in the evidence given by Mr Fuller and Mr Huebner is, therefore critical. I prefer the evidence given by Mr Huebner in that regard for the following reasons.
[8] Firstly, Mr Fuller’s evidence about the conversation is vague and imprecise. He was not able to fix it in point of time. In his statement of claim he alleged it occurred in February or March of 2006, although this timing was thrown into some doubt by other evidence about when he obtained a quote for the work. He could not provide other details about the circumstances surrounding the alleged conversation which might have fixed the date more precisely.
[9] Secondly, and following on from the first point, Mr Fuller’s evidence about that conversation does not rest comfortably with the contractor’s written quote, which is dated 10 April 2006. That postdates the alleged conversation. Mr Fuller’s evidence was not clear about whether he had shown Mr Huebner the quote when Mr Huebner was said to have agreed to pay half the costs. Certainly, Mr Fuller gave evidence that he advised Mr Huebner that he had a quote from a contractor in the vicinity of $100,000 plus the cost of 1,000 tonnes of rock. Yet the contractor’s quote was for $149,600 and included the cost of materials. At one point in his evidence Mr Fuller said Mr Huebner entered into the agreement before the quote was obtained. That doesn’t sit well with the alleged terms of the conversation which refers specifically to a quote. Mr Fuller was not able to explain these inconsistencies. The plaintiff’s evidence was left in a state of uncertainty about whether the critical conversation predated the written quote, or whether the quote discussed was the written quote or some other. The ambiguities in Mr Fuller’s evidence raised a significant hurdle for the plaintiff to overcome in discharging its burden of proving its case.
[10] Thirdly, in contrast, Mr Huebner’s evidence was clear and precise. He was adamant there was no conversation in the terms alleged in February or March of 2006. He was aware that some work was being done on site and assumed that this was the result of his complaints to the council, the most recent being his letter of 24 January 2006.
[11] Fourthly, entries in Mr Huebner’s diary are more consistent with his version of events than with Mr Fuller’s. Under cross-examination, his entry for 16 March 2006 was put to him as evidence of the agreement. In that entry Mr Huebner used the phrase “our rock wall”. It was put to him that this was a reference to the retaining wall and indicated a sense of ownership of and therefore responsibility for the wall which was consistent with an agreement to share the costs of its construction.
[12] Mr Huebner said that was a reference to a rock wall on the defendant’s property to form a bund around a pit for a diesel workshop operated by a sub tenant. Other entries on 18, 19 and 25 of March 2006 are consistent with that explanation and I accept his evidence about it. Other entries in May, June and August of 2006 are consistent with the evidence Mr Huebner gave about his lack of foreknowledge of or involvement in the construction of the wall. Most telling are his entries for 29 May and 5 June 2006. The former indicates he learned of work on the defendant’s property once it had commenced, not beforehand. The latter records the conversation consistently with his evidence. Whilst the entries are brief they are precise and unambiguous. None of the diary entries admitted into evidence indicates Mr Huebner had any prior knowledge of, involvement in or sense of responsibility for the construction of the wall.
[13] Fifthly, over more than 10 years Mr Huebner had registered numerous complaints with the Gold Coast City Council about the accumulation of material on the plaintiff’s property and the impact it was having on drainage on his property. He consistently took the position that it was not his responsibility and that the council should take steps to make the responsible party, whether the owner or occupier, to remedy the problem. At no time did he indicate he was willing to bear some responsibility for solving the problem. This is consistent with the uncontested evidence of what he said to Mr Fuller on site in June and July and later during the two visits Mr Fuller made to Mr Huebner’s home. Given that course of conduct, it is implausible that Mr Huebner would agree to bear a liability of at least $50,000 to solve a problem not of his making.
[14] Finally, it was not controversial that Mr Huebner had no involvement at all in either obtaining quotes, supervising works, selecting designs, dealing with council or engineers or any other aspect of the design or construction of the rock wall. Mr Huebner was an engineer since 1957 until he retired recently. He was a construction engineer and project manager for some 35 years. His business was civil engineering, including sewerage, drainage, pump stations, retaining walls, sea walls, rock walls etc. It is improbable that a man with such a background, having assumed responsibility for half the costs, would have delegated all decisions to a neighbour with whom he had had little contact over the years.
[15] Finally, evidence was led regarding the involvement of Mr Huebner’s caretaker, Fritz Callus, in supervising certain activities during the construction of the wall. There is no dispute that Mr Callus provided an excavator operator with access to the defendant’s property. Mr Callus said this was to allow him to remove material which had fallen down during the construction of the wall. That can cast no different complexion upon the evidence of either Mr Fuller or Mr Huebner.
[16] Mr Child, the excavator operator, gave evidence that Mr Callus told him to “step –back” the wall away from a spoon drain on the defendant’s property. Mr Child said he would have to check those instructions with the owner and that Mr Callus told him he did not need to because they (an apparent reference to the defendant) were paying half the costs of the wall. Mr Callus denies saying this. Whilst there is no doubt a lengthy relationship between Mr Callus and Mr Huebner there is nothing to indicate he is not a truthful witness. I accept that Mr Child recounted as best he could recall his conversation with Mr Callus. Without intending any disrespect to either witness, Mr Callus speaks with a very strong accent. It would not be surprising for misunderstandings to arise during conversation.
[17] It is not alleged that Mr Callus was the defendant’s agent. At best, the statement, if made, may cast doubt on Mr Huebner’s evidence because an inference may be drawn that Mr Huebner was the source of Mr Callus’ understanding about the wall. There are, of course, other possible inferences that could be drawn, for example that Mr Callus misunderstood something said to him by someone, not necessarily Mr Huebner, or that Mr Callus assumed the costs would be shared if the wall was located on a common boundary. Even if I did accept that Mr Callus said what was attributed to him, in light of the other matters of credit to which I have adverted, and given the alternative inferences open, I am not willing to draw the inference adverse to Mr Huebner on the strength of Mr Child’s evidence alone.
[18] As I have accepted Mr Huebner’s evidence about the critical conversation, the plaintiff has failed to make out its case that an agreement was reached. Other arguments were raised in defence of the claim, primarily that there was insufficient certainty of terms for an agreement to have been formed. Given my factual determination, it is unnecessary for me to address those arguments.
[19] The plaintiff’s claim is dismissed. I order the plaintiff to pay the defendant’s costs assessed on the standard basis.