Buonanova v Miller

[2022] QCAT 379

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Buonanova v Miller [2022] QCAT 379

PARTIES:

Nick buonanova

(applicant)

v

adam tyson miller

(respondent)

APPLICATION NO/S:

BDL159-20

MATTER TYPE:

Building matters

DELIVERED ON:

9 November 2022

HEARING DATE:

28 October 2022

HEARD AT:

Brisbane

DECISION OF:

Member Bishop

ORDERS:

1.     Mr Miller is to pay Mr Buonanova the sum of $10.00 within 28 days of the date of this decision.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – whether the breach caused, or materially caused, the loss

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld)

Bennett v Minister of Community Welfare [1992] HCA 27
Chappel v Hart (1998) 195 CLR 232
Bennett v Minister of Community Welfare [1992] HCA 27
Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. Mr Buonanova claims he entered into a contract with Mr Miller of Global Stairs on 5 February 2019. His written evidence[1] was Global Stairs commenced work on 29 March 2019 but, despite Mr Buonanova’s continual prompting – which the Tribunal accepts[2] – failed to complete the work in a timely manner.

   [1]Statement of Nick Buonanova signed and dated 20 October 2021 and filed 25 October 2021.

   [2]See Exhibit D of Mr Buonanova’s statement.

2. On 10 June 2020, the Queensland Building and Construction Commission (QBCC) issued to Mr Miller a direction to rectify and/or complete work under section 72 of the Queensland Building and Construction Commission Act 1991 (the Act).[3] Mr Buonanova’s evidence was Mr Miller rectified the work on 13 July 2020 and provided to him the certification paperwork on 22 July 2020.[4]

   [3]See Exhibit L of Mr Buonanova’s statement.

   [4]Statement of Nick Buonanova signed and dated 20 October 2021 and filed 25 October 2021.

3. Mr Buonanova claims Mr Miller’s failure to complete the work until 22 July 2020 caused him financial loss and he is seeking $2,071.[5]

   [5]Ibid, Application for domestic building dispute (Form number 26 version 3) filed 2 July 2020.

4. Under sections 77(1) and 77(2) of the Act a person who is involved in a building dispute can make an application to the Tribunal if that person has complied with established QBCC processes. Attached to Mr Buonanova’s application was evidence of QBCC processes being complied with and the Tribunal is satisfied it has jurisdiction.

Contractual claim

1. Mr Buonanova provided a receipt from Mr Miller of Global Stairs addressed to Mr Buonanova.[6] The receipt numbered 00316 was for a ‘job’ at site address 156 Monaco Street Broadbeach and dated 5 February 2019. The receipt relevantly states:

   Supply install steel mono stringer to stairwell black consisting of 3 flights and 2 landings Treads to be vic (sic) ash 65mm x 290mm these are supply only to be fitted by owner.             

   Total for this contract is $9000.00 cash.

   To be paid upfront as agreed.

   Steel engineers have advised 5 to 6 weeks for install.

   [6]See Exhibit A of Mr Buonanova’s statement.

1. The receipt states, “signatures on receipt of payment” and the names Nick Buonanova and Adam Miller appeared below. However, the receipt was not signed.[7]

   [7]Ibid.

2. The above receipt indicates, and the Tribunal so finds, Mr Buonanova entered into an agreement or contract with Mr Miller of Global Stairs on terms outlined in the receipt.

3. Schedule 2 of the Act defines a building dispute to include a domestic building dispute. A domestic building dispute is defined to include a claim or dispute between a building owner and a contractor relating to the performance, or a contract for, reviewable domestic work. Schedule 1B of the Act defines domestic building work to include the building of fixtures, for example stairs and landings, and a domestic building contract includes a contract to carry out domestic building work.

4. Mr Miller provided sworn written evidence dated 30 March 2021[8] indicating Mr Buonanova was an owner builder and this is consistent with the letter from Porter Consulting Pty Ltd dated 29 March 2021.[9] In that letter, Mr Justin Porter (Director and Building Certifier) outlined his interactions with Mr Buonanova in his capacity as the builder and Mr Buonanova’s address was listed as 156 Monaco Street at Broadbeach Waters – suggesting Mr Buonanova was an owner builder.

   [8]Mr Miller’s Affidavit filed 1 April 2021.

   [9]Letter on Porter Consulting letterhead dated 29 March 2021 and filed 1 April 2021.

5. Under section 3(2) of Schedule 1B of the Act, a domestic building contract does not include a contract between the holder of an owner-builder permit and a building contractor. Based on the evidence before it, the Tribunal is satisfied Mr Buonanova was the holder of an owner-builder permit at the time he entered into the contract with Mr Miller (a building contractor). The Tribunal finds the contract is not a domestic building contract and is enforceable.

6. In relation to when the stairs were to be completed, the relevant term of the contract is:

   Steel engineers have advised 5 to 6 weeks for install.

7. It is not clear to the Tribunal if this term means it will take five to six weeks to install the stairs or if the stairs will be installed in five to six weeks. However, even if the Tribunal found the term meant the stairs would be installed five or six weeks after the date of the receipt and Mr Miller breached that term, Mr Buonanova must establish Mr Miller’s breach caused,[10] or – where there is more than one cause – materially caused,[11] the loss.

   [10]See Chappel v Hart (1998) 195 CLR 232 at 268-269 (Kirby J).

   [11]See Chappel v Hart (1998) 195 CLR 232 at 238,244; Henville v Walker (2001) 182 ALR 37 at 61.

8. In general, the principles governing causation are the same in contract and tort.[12] In Bennett v Minister of Community Welfare [1992] HCA 27, all members of the High Court adopted a 'common sense' approach to causation. Mason CJ, Deane and Toohey JJ held, and Gaudron J agreed:

   In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense. In resolving that question, the 'but for' test, applied as a negative criterion of causation, has an important role to play but is not a comprehensive and exclusive test of causation; value judgements and policy considerations necessarily intrude.[13]

   [12]See for example Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603.

   [13]at paragraph 8.

9. McHugh J held:

   the existence of the causal connection is to be determined in accordance with common sense notions of causation and not in accordance with any philosophical or scientific theory of causation or any modification or adaption of such a theory for legal purpose.[14]

   [14]at paragraph 10.

10. Mr Porter’s letter[15] states Mr Buonanova’s building approval had a lapsing date of 27 June 2020. Porter Consulting sent Mr Buonanova a reminder of his lapsing date and Mr Buonanova advised he was waiting for “the QBCC matter to be resolved and chase up other certificates that were outstanding.”[16] Porter Consulting then proceeded with extending the building approval for three months for a fee of $660.00 including GST.[17]

    [15]      Letter on Porter Consulting letterhead dated 29 March 2021 and filed 1 April 2021.

    [16]Ibid under Dot Point 2.

    [17]Ibid, Porter Consulting Tax Invoice addressed to Mr Buonanova in the sum of $660.00.

11. Mr Buonanova sent Mr Miller an invoice dated 5 June 2020 for $1,122.00. That amount was made up of $770.00 for lapsing of an approval application for building certifier (although Porter Consulting’s evidence was the invoice was for $660.00),[18] $250.00 for administration and processing fees associated with re-lodgement of the application and $102.00 for GST. The covering email indicated Mr Miller had 14 days to pay the amount and, if he failed to do so, an annual interest rate of 25% would be applicable.[19] Mr Buonanova’s Tribunal application indicated he wanted reimbursement for the extension for building approval costs and all lodgement and processing costs. The Tribunal notes the cost of filing his Tribunal application was $348.80. Although it is not clear on the evidence how Mr Buonanova calculated his costs, his Tribunal application indicated he sought a total of $2,071.

    [18]Ibid.

    [19]See Exhibit K of Mr Buonanova’s statement.

12. The new lapsing date was 29 September 2020.[20] On 22 September 2020 Porter Consulting inspected 156 Monaco Street Broadbeach Waters and provided an inspection report.[21] Mr Porter states the inspection report identified significant defects and 16 outstanding certificates at that time.[22] Mr Porter states that at the time of the inspection, he was unaware of incomplete works related to the stairs.[23] This is consistent with Mr Buonanova’s written evidence that Mr Miller completed the stairs and issued the required certificates on 22 July 2020.[24] Mr Porter states on 30 October 2020 Porter Consulting sent Mr Buonanova a Form 22 notice of discontinuous because the level of risk associated with the outstanding defects was not acceptable.[25]

    [20]Letter on Porter Consulting letterhead dated 29 March 2021 and filed 1 April 2021.

    [21]Porter Consulting 15-page final inspection report completed on 22 September 2020 and filed 1 April 2021.

    [22]Letter on Porter Consulting letterhead dated 29 March 2021 and filed 1 April 2021.

    [23]Letter on Porter Consulting letterhead dated 29 March 2021 and filed 1 April 2021.

    [24]Statement of Nick Buonanova signed and dated 20 October 2021 and filed 25 October 2021.

    [25]Letter on Porter Consulting letterhead dated 29 March 2021 and filed 1 April 2021.

13. The evidence before the Tribunal is Mr Miller was one of several contractors who had not completed work and issued certificates on or before the first lapsing date of 27 June 2020.[26] Even if Mr Miller had completed the work within the five or six weeks as indicated in the receipt, Mr Buonanova would still have needed to extend the building approval. Despite Mr Miller’s tardiness, the Tribunal is not satisfied he caused – or materially caused – Mr Buonanova to suffer financial loss.

    [26]Porter Consulting 15-page final inspection report completed on 22 September 2020 and filed 1 April 2021.

14. The contract term related to time is ambiguous and the Tribunal is not satisfied Mr Miller did, in fact, contract to perform his obligations in five or six weeks. However, when a contract does not stipulate a timeframe for performance, there is an implied term that it must be done within a reasonable time.[27] The Tribunal is satisfied there was an implied term in the contract that Mr Miller would perform his obligations within a reasonable time.

    [27]Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1.

15. Mr Buonanova states Mr Miller commenced work on the stairs on 29 March 2019 and he provided photographs of stairs being installed on 29 March 2019. However, Mr Miller did not complete them. Mr Buonanova contacted Mr Miller numerous times and provided screen shots of text messages between him, and a person called “Stairs Adam”.[28] The Tribunal is satisfied the text messages are between Mr Buonanova and Mr Miller.

    [28]Exhibit D.

16. On 4 July 2019 Mr Buonanova texted Mr Miller stating:

    Adam,

    I need this issue rectified asap as I cant (sic) get form 22 from Certifier. This is now costing money on delays which I will be issuing you back charges if no action taken promptly.

17. On 10 October 2019 Mr Buonanova texted Mr Miller stating:

    Adam, hows (sic) things Mate can u please call me need these stairs sorted

18. On 11 February 2020 Mr Buonanova texted in response to Mr Miller stating Mr Buonanova was on his list:

    Adam I should be top of list please fix and finish my stairs

19. Mr Buonanova’s evidence was Mr Miller rectified the work on 13 July 2020 and provided to him the certification paperwork on 22 July 2020.[29] Mr Miller took nearly 18 months to perform his obligations under the contract and the Tribunal is not satisfied that was reasonable. The Tribunal finds Mr Miller breached an implied term of the contract to perform his obligations under the contract in a reasonable time.

    [29]Statement of Nick Buonanova signed and dated 20 October 2021 and filed 25 October 2021.

20. The Tribunal has found that Mr Miller’s breach did not cause or materially cause Mr Buonanova’s loss. However, a breach of contract does entitle Mr Buonanova to nominal damages, where causation is not established.[30] The Tribunal makes an award of $10.00.

    [30]Chappel v Hart (1998) 195 CLR 232 at 270, 290.

Counter application

1. Mr Miller states in his affidavit he was suing Mr Buonanova for his costs. Those costs totalled $2,395.00 and comprised of $1,375.00 from Porter Consulting to respond to Mr Buonanova’s Tribunal application on behalf of Mr Miller and $1,020.00 for four employees who were “held up out front for 5 hours trying to install refused access by Nick”.[31] Section 50 of Part 6 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) states a counter-application to an application or referral must be made in the approved form and attached to the respondent’s response to the application. It is unclear to the Tribunal if Mr Miller is suing, or intends to sue, Mr Buonanova in a court or if he was seeking the sum of $2,395.00 from the Tribunal. If that was Mr Miller’s intention, he has not applied to the Tribunal in the approved form, attached his response to that form and paid the counter- application filing fee. Although the Tribunal can waive compliance with a procedural requirement,[32] the Tribunal cannot take action on an application until the fee is paid.[33] The Tribunal is not satisfied Mr Miller made a counter-application on the evidence before it.

   [31]Mr Miller’s Affidavit filed 1 April 2021.

   [32]See section 61(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

   [33]See section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Costs

1. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [34] Devlin J (as he then was) said:

   No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct. In applying that rule, however, it is necessary to decide whether the plaintiff really has been successful, and I do not think that a plaintiff who recovers nominal damages ought necessarily to be regarded in the ordinary sense of the word as a “successful” plaintiff. In certain cases, he may be, e.g., where part of the object of the action is to establish a legal right, wholly irrespective of whether any substantial remedy is obtained. To that extent a plaintiff who recovers nominal damages may properly be regarded as a successful plaintiff, but it is necessary to examine the facts of each particular case

   [34][1951] 1 All ER 873 at 874-875.

2. The Tribunal can award costs under section 77(3) of the Act; displacing section 100 of the Queensland Civil and Administrative Tribunal Act 2009 that each party should bear their own costs. In general, a successful party is entitled to recover costs from the other party. However, the Tribunal has a broad discretion.

3. Although the Tribunal accepts Mr Miller breached an implied term of the contract, it was not satisfied Mr Buonanova suffered loss because of that breach. The cost to Mr Buonanova for filing his Tribunal application was $348.80 and Mr Miller’s sworn evidence was he has incurred costs of $2,395.00 responding to Mr Buonanova’s application. Taking into consideration all the circumstances of the case, the Tribunal is not persuaded to award costs.

Orders

1. The Tribunal orders Mr Miller pay to Mr Buonanova the sum of $10.00 within 28 days of the date of this decision.