Cascol Constructions Pty Ltd v Blanchard - [2013] QCAT 270

CITATION:

Cascol Constructions Pty Ltd v Blanchard & Anor [2013] QCAT 270

PARTIES:	Cascol Constructions Pty Ltd (Applicant)
v
Keith Blanchard Katherine Blanchard (Respondents)

APPLICATION NUMBER:

BDL196-11

MATTER TYPE:

Building matters

HEARING DATE:

17 December 2012 and 19 February 2013

HEARD AT:

Brisbane

DECISION OF:

Michael Howe, Member

DELIVERED ON:

6 June 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

The Applicant Cascol Constructions Pty Ltd pay to the Respondents Keith Blanchard and Katherine Blanchard the sum of $112,318.53 plus interest of $10,401 by 4:00pm on 7 June 2013.

CATCHWORDS:

UNREGISTERED BUILDER – corporate builder – hycorporate “person” under s 42 QBSA Act – a corporation’s labour – registration as a builder during construction - reasonable remuneration – in pari delicto.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100
Queensland Building Services Authority Act 1991 (Qld), s 42

Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly Stork Food Systems Australia Pty Ltd) [2009] QCA 75
Nortask Pty Ltd & Speziali v Rodriguez (2008) QCCTB 250
Smith Development Pty Ltd v Moreton Island Development Group [2013] QCAT 10

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	The applicant was represented by Mr Bowley.
RESPONDENT:	The respondents were represented by Ms Fitzgerald of counsel instructed by Thompson, Lawyers.

REASONS FOR DECISION

The Claim

Mr and Mrs Blanchard own a home at Shailer Park. In mid-2009 they decided to do extensive renovations and additions. The applicant company, Cascol Constructions Pty Ltd, did the work from end 2009 through 2010. Then the parties fell out over money.
The Blanchard's had paid $745,000 or more to Cascol by November 2010 but Cascol claimed an additional $105,120.86 remained owing.
Cascol commenced proceedings in the Tribunal claiming that sum. The Blanchards' counterclaimed $188,175.66 as overcharges. They also raised the issue that neither Cascol nor its director, Mr Bowley, was registered as required by the provisions of the Queensland Building Services Authority Act 1991 (Qld) (QBSA Act).
Cascol withdrew its claim but the Blanchard's continued with their counter-application. At compulsory conference the issues for determination were agreed as being first, who was the builder, Mr Bowley or Cascol, and second, was either or both of those parties liable to refund money to the Blanchards’ pursuant to s 42 of the QBSA Act.

Background

Mr Bowley is a carpenter and the director of Cascol Constructions Pty Ltd. He was introduced to the Blanchards’ by a mutual acquaintance. Mr Bowley, together with a colleague of his, Mr Cooney, had a number of meetings with the Blanchards’ over June to August 2009 to discuss the project. Mr and Mrs Blanchard say Bowley and Cooney represented themselves as being registered builders at the initial meeting in June. Both builders deny that.
Mr and Mrs Blanchard also say that at a meeting in August 2009 they were told by the builders a written contract was not necessary, and that is not contested.
In August 2009 Mr Cooney prepared an estimate of the cost of the job and gave it to the Blanchards’.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cascol Constructions Pty Ltd v Blanchard

Details

AGLC: Cascol Constructions Pty Ltd v Blanchard [2013] QCAT 270
Case: [2013] QCAT 270
Decision Date

CaseChat Overview and Summary

Cascol Constructions Pty Ltd, a building company, and Mr and Mrs Blanchard, a married couple, were before the Queensland Civil and Administrative Tribunal (QCAT) in a dispute over the cost of renovations and additions to the Blanchard's home at Shailer Park. The Blanchards paid Cascol over $745,000 but Cascol claimed an additional $105,120.86 remained owing. The Blanchards counterclaimed $188,175.66 as overcharges and also raised the issue that neither Cascol nor its director, Mr Bowley, was registered as required by the Queensland Building Services Authority Act 1991 (QBSA Act). The Tribunal was required to decide who was the builder, Mr Bowley or Cascol, and whether either or both of those parties were liable to refund money to the Blanchards pursuant to s 42 of the QBSA Act. The Tribunal concluded that Cascol was the builder and that Cascol was not entitled to any consideration for the work done while unlicensed. The Tribunal also found that Cascol was entitled to reasonable remuneration for the work done, which was calculated to be $516,955.97. Therefore, Cascol was ordered to refund the balance of $112,318.53 to the Blanchards, plus interest of $10,401.

In reaching its decision, the Tribunal considered the evidence of both parties and found that Cascol was the builder performing work at the Shailer Park property. The Tribunal also found that the Blanchards were not in pari delicto with Cascol, as they were unaware that Cascol was not registered. The Tribunal then considered whether Cascol was entitled to reasonable remuneration for the work done and found that the evidence provided by Cascol was appropriate material to be considered. The Tribunal calculated the reasonable remuneration to be $516,955.97, which included payments made after Cascol became a licensed builder. The Tribunal also considered the issue of in pari delicto and found that the circumstances of this matter did not suggest that the Blanchards knowingly engaged an unlicensed builder. The Tribunal then calculated the total amount paid to Cascol during the period when Cascol was in breach of s 42(1) of the QBSA Act and found that Cascol must refund the balance of $112,318.53 to the Blanchards. The Tribunal also allowed a commercial rate of 5% interest on the sum owed from the date of filing of the counter-application on 27 July 2011, which was calculated at $10,401. In respect of costs, the Tribunal applied the usual presumption and each party should bear their own costs.

Orders