Angelini v Norbert Wegner Plasterboard Contractors

[2017] QCATA 20

CITATION: Angelini & Anor v Norbert Wegner Plasterboard Contractors [2017] QCATA 20

PARTIES:	Pietro Angelini Esther Angelini (Applicant/Appellant)
v
Norbert Wegner Plasterboard Contractors (Respondent)
APPLICATION NUMBER:		APL269-16

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 2 February 2017

DELIVERED AT: Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1.     Leave to appeal is granted.

2.     The appeal is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – LEGALITY – where the applicant seeks leave to appeal a tribunal decision to award the respondent an amount based on a wholly oral building contract – where the Queensland Building and Construction Commission Act 1991 (Qld) makes it an offence to enter a wholly oral building contract – where the tribunal failed to consider the relevant provisions of the Queensland Building and Construction Commission Act 1991 (Qld) – whether the wholly oral building contract is enforceable

Queensland Building and Construction Commission Act 1991 (Qld) ss 67E, 67G

Megalift Pty Ltd v Terminals Pty Ltd [2009] NSWSC 324

Nichols v Earth Spirit Home Pty Ltd [2015] QCA 219

APPEARANCES and REPRESENTATION:

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. This minor debt dispute about liability to pay for building work was decided against the appellants. The appeal issue is whether the order for the payment of money was a ‘fair and equitable’ one to the parties in order to resolve their dispute.

The context

1. The tribunal heard conflicting evidence about the claim from both sides and resolved the dispute about elemental facts in the respondent’s favour to the civil standard.[1]

   [1]Misstated in the transcript at 1-25:12 as beyond reasonable doubt.

2. The appellants claimed that the disputed building work was never quoted for and was not worth more than the $3,300 allegedly accepted in full and final payment on 17 August 2015. The respondent contended that a valid commercial building contract was concluded on acceptance and performance of the work. The $3,300, he said, was part payment and the balance was due and payable but unpaid at the date of the order.

3. The tribunal was satisfied that the respondent quoted $8,500 to do the stated building work. The estimate was accepted and the work done as agreed. The invoiced lesser amount of $5,700 plus GST ($6,340 in total) was found to be fair and reasonable remuneration for the materials supplied and services provided. The appellants were ordered to pay the unpaid portion of $3,040 plus $290.67 in interest, in addition to recovery costs of $190.90, equalling $3,530.27.

The appeal

1. The appeal is based on the legal proposition that “building work over $3,300 must be subject to a formal written contract between the parties and there was no written contract in this matter”. This point was neither raised nor decided at the hearing.

2. Under s 67G of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), it is a general offence for a builder not to put a building contract into writing before finishing carrying out the building work if the reasonable cost of the subject work is $10,000 or less. The exceptions in s 67G(6) do not apply.

3. The question of whether a wholly oral building contract is enforceable having regard to the requirement in s 67G QBCC Act has already been decided by the Queensland Court of Appeal. In Nichols v Earth Spirit Home Pty Ltd,[2] (Nichols) the appellant argued that the parties’ oral contract was illegal because it had not been put into writing and that he was therefore not liable to pay the builder.

   [2][2015] QCA 219.

4. Despite the offence provision in s 67G, the Court of Appeal upheld the QCAT appeal tribunal’s finding that the oral building contract was still enforceable despite the illegality. It said that, although a registered builder who enters an oral contract is likely to attract a penalty, they are still entitled to seek compensation for work done.

5. This intended meaning of the legislation was inferred from the explanatory notes to, and the second reading speech for, the Bill and terms of s 67E(1)(a) QBCC Act, which expressly states that even if a party commits an offence under the relevant Part of the QBCC Act, the contract is not necessarily made void or voidable.

6. The Court of Appeal did hold that there may be instances where the nature and severity of the illegality in question will make a contract unenforceable. In Nichols, however, there were no circumstances that called for the contract to be voided for public policy reasons. Here, too, the notice of appeal and submissions make it clear that the basis on which the applicants seek to overturn the original decision is the bare requirement of a written contract under s 67G. They have not identified any other vitiating legal or factual error made by the tribunal at first instance.

7. In light of this legal conclusion, there is no need to investigate the possibility that the quote the tribunal found the respondent gave, in conjunction with the applicant’s apparent acceptance of it verbally and by other conduct, constitutes a ‘contract put into (or evidenced in) writing’. It is worth noting, however, that, in some circumstances, an accepted quote can be a contractually binding offer.[3]

   [3]See for example Megalift Pty Ltd v Terminals Pty Ltd [2009] NSWSC 324.

8. As the tribunal failed to consider the relevance of s 67G, the applicants have identified an error in its reasoning so leave to appeal is granted accordingly. However, for the reasons above, the appeal cannot succeed.