Claimant Wins Adjudication and Collects The Debt In Full.
Prime Collections Pty Limited
Debt Collection Agencies, Building & Construction, Fast Debt Collection
Australian Debt Recovery Services
In November of 2006 the respondents approached the claimant to discuss an
agreement to hire and purchase an excavator 1 Komatsu PC220-
6 excavator serial no being 50375, please see annexure marked
with the letter “F”.
2. The respondents attended the claimant’s home and place of
business to discuss the arrangement. The respondents indicated
that they wanted to purchase the excavator, however they
required some time to sort out their financing. They inquired as
to whether they could take possession of the machine and pay
early in the new year of 2007.
3. An oral agreement was reached between the parties that the
excavator would be hired then purchased the purchase rate being
$77,000 including GST.
4. The respondents indicated at this meeting that they were seeking
finance for the purchase and that there would be a sale of
property. In reliance on that discussion an agreement was
reached that the respondents would take possession of the
machine and that payment would then be remitted at a later date
once the financing was finalised.
5. On the basis of this oral agreement the respondents were to take
possession of the excavator and be responsible for the hire of the
machine until full payment was made.
6. Approximately one week later the claimant delivered the
excavator to the residence of the respondent and they took
possession of it. Payment for the excavator was to be made in full
once the financing came through.
7. During the months proceeding the claimants made numerous
attempts to keep in contact with the respondents but found this
to be difficult as there was little or no response from the
respondents to the phone calls or messages left for them. When
they finally contacted there response remained that they were
awaiting approval for financing.
8. The respondents held possession and benefited from the use of
the excavator for the period of 18 months during which the
claimants were deprived of enjoyment and commercial benefit of
9. The claimants made numerous attempts to contact the
respondents regarding the payment for the purchase and hire of
the excavator. In November of 2007 the claimants sent a letter
including current and past invoices to the respondents to request
payment. Please see annexure marked as letter “A” for a copy of
these invoices #260 #422 and #423.
10. At all times throughout this period the respondents Tamara
Rushton and David Brown maintained that they still wanted the
excavator and that they were trying to organize finance and also
they were trying to sell a house. Tamara indicated that as soon as
this went through they would remit payment.
11. On the 29 of January 2008 the claimants received faxed
letter from the respondent Tamara Rushton. Please find a copy of
this letter annexed hereto marked as letter “B”.
12. The respondents in this letter indicate that they were still in
the process of finalising the finance and were aware of their
responsibility for the hire of the excavator for the months it was
in their possession.
13. In the faxed letter respondent states…
“I am aware that there will be a hire fee for the machine sitting in
our shed for the past months, as if the boot were on the other foot I
would want something for it, so please advise me of what the
monthly hire fee is so we can sort that part out as well.”
14. On the 21 February 2008 the claimant faxed a letter to the
respondents requesting either the full payment for the machine or
the payment of invoice 423, which indicates the cost of hire of
the machine for the period of 18 months. A copy of the letter is
annexed hereto marked as letter C.
15. Invoice no 423 originally issued on 21 of November 2007
and again in February of 2008 is for the amount of $93,870.00.
This is to satisfy the debt owed for the hire of the excavator for
the period of 18 months. It includes expenses incurred for the
repossession of the excavator from the respondents premises.
16. The break up of the invoice is as follows:
Excavator Hire from 21-11-06 to 21-11-07 $78,000
52 weeks@$1500 per week + GST
Excavator Hire from 21-11-07 to 21-01-08 $6000
4 weeks@$1500 per week + GST
Excavator Hire from 22-01-08 to 24-02-08 $6000
4 weeks@$1500 per week + GST
Lowloader Excavator picked up from respondents $500
100@$5per unit + GST
Sundries Three persons to assist pick up of excavator $420
3 persons @$35per hour (took four hours)
Sundries Recovery charges $2950
1@2950 including GST
17. The respondents made no attempt to make any payments
towards the invoices that were sent or to contact the claimants
regarding the invoices.
18. The claimants approached the
respondents and requested payment providing invoices in person.
When the claimant spoke with the respondent she laughed at him and said the
cheque is in the mail.
19. On the 26 February 2008 the Claimant, employee and offsider drove
over to the respondents premises, located the excavator and
repossessed it. At this time the Claimants also left a copy of the
invoice for the hire of the machine for the period of 18 months.
20. The claimants based the fee for hire by inquiring of the fees
charged at industry standard by XYZ Hire Company. They
obtained a quote on hiring a machine of this size. The quote
given over the phone was $3,000.00 per week. The claimants felt
it fair to charge half that rate $1500.00 per week for the hire of
the excavator during the period it had been in the respondent’s
21. On the 1st July 2008 the respondents were served with a
payment claim dated 20 June 2008. The payment claim was
served in person under the terms of the Building and Construction
Security of Payment Act 1999 (NSW) hereto marked as letter “D”
Please find also a Statutory Declaration indicating receipt of
22. As no Payment Schedule was received from the respondent
within the required time frame provided by s17 (2) of the Act the
claimants duly issued a s17 (2) notice on the 14 July 2008.
Attempts were made to fax the notice however when these
proved unsuccessful the notice was posted on the 14 July 2008.
23. The respondents also failed to provide the payment schedule
or any response within the given five day period under s17 (2)
(b) of the Act.
24. Under these circumstances, the claimant seeks to lodge an
adjudication application. The claimants maintain that it should be
paid, according to invoice 423, in full for the hire and
repossession of the excavator for the period it was in the
respondents possession and should not suffer financial loss
having been deprived of the both the benefit of sale and hire of
the machine for the period of 18 months
The adjudicator awarded the claimant the full amount owed under its invoices in the sum of 96,758.36 plus interest in the sum of $2,167.13, including 100% of the adjudicators fees.
Prime Collections secured a payment arrangement with the debtor and collected the debt in full totaling well over $100,000 including legal costs.
If you liked the way we handled this case, call us to see how we can do the same for you.
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