Concrib Pty Ltd v O'Keefe

[2011] QCAT 235

CITATION:		Concrib Pty Ltd v O’Keefe [2011] QCAT 235
PARTIES:	Concrib Pty Ltd
v
Mr Dal O’Keefe, Mrs Kylie O’Keefe

APPLICATION NUMBER:   BDL296-10

MATTER TYPE: Building matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe, Member

DELIVERED ON: 21 January 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

1. The respondent Mr Dal O’Keefe pay the applicant $8,378.87 plus costs of $332.00 within 28 days.

2. The application against the respondent Mrs O’Keefe is dismissed.

CATCHWORDS:

DECISION BY DEFAULT – where applicant built a retaining wall – where no written contract – where quote issued to a different party – where invoices addressed to only one respondent – where variations requested by a third party

QCAT Practice Direction 9 of 2010

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Concrib Pty Ltd has applied for a decision in default (unliquidated damages) pursuant to Practice Direction 9 of 2010.

2. I am satisfied that Mr and Mrs O’Keefe have been properly served:

a)The affidavit of Alfred James Maher filed 12 October 2010 shows that Mrs O’Keefe was served personally on 27 September 2010;

b)The affidavit of Alfred James Maher filed 7 December 2010 shows that Mr O’Keefe was served in accordance with the tribunal’s direction of 29 November 2010 by serving a copy of the application on him care of Ray White Goodna, Suite 6B St Ives Professional Centre, 5 Smiths Road Goodna.

1. Neither Mr nor Mrs O’Keefe has filed any material in response to the application.

2. On 17 January 2011 Concrib Pty Ltd (“Concrib”) filed an application for a decision by default together with the affidavit of Bronson John Freeman sworn 17 January 2011.  That affidavit exhibits:

a)A quote dated 17 February 2009 directed to Mr B King for the construction of a retaining wall in the sum of $13,179.10.

b)Tax invoice 00003454 dated 8 October 2007 directed to Mr Dal O’Keefe in the sum of $4,800 as a deposit for supply and installation of the wall.  The tax invoice shows the deposit as being paid.

c)A Form 15 certificate dated 9 May 2010 confirming that the wall has been built and is compliant.

d)An undated invoice reconciliation showing a balance of $10,447.00 owing.

e)Tax invoice 00004671 dated 17 May 2010 directed to Dal O’Keefe in the sum of $10,447.00.

1. The parties did not enter into a building contract.  Therefore, Concrib’s claim is based on the principles of quantum meruit.  Given that Concrib has provided a quote that details the work to be performed, the work done was largely in compliance with the quote and the amount claimed also largely in accordance with the quote, I am satisfied that the amount claimed is reasonable for the work done.

2. The only material that connects Mrs O’Keefe to this transaction is a series of emails to and from “Dal and Kylie” at an email address that appeared to be accessed by both of those parties.  I note that Mr Watson, sales manager of Concrib directs some emails directly to “Kylie”, and there is a request on 28 October for Mr Watson to contact Kylie to make arrangements for the debt to be paid off.  I do not consider, given that the invoices are addressed only to Mr Dal O’Keefe, that this email correspondence is sufficient evidence that Concrib entered into a contract with Mrs O’Keefe.  Accordingly, I am not satisfied that Mrs O’Keefe has incurred liability for any amount owing pursuant to this transaction.

3. Mr Freeman, at paragraph 10 of his affidavit, notes that Concrib is claiming an additional $2,068.13 for variations requested to the works.  The invoice reconciliation shows that the extra work was requested by Mr King, who was not a party to the transaction and whom Concrib knew had not been cooperating with Mr and Mrs O’Keefe.  There is no evidence that Mr and Mrs O’Keefe accepted the variation requested by Mr King; they should not have to pay for it.  Without that variation, the amount owing is $8,378.87.

1. I record that Concrib has incurred the following costs in pursuing this application:

Filing fee	$255.00
Service fees	77.00
$332.00

1. I order:

a)Mr O’Keefe pay Concrib $8,378.87 plus costs of $332.00, a total of $8,710.87 within 28 days.

b)The application against Mrs O’Keefe is dismissed.