Darryn C Watts Consultants Pty Ltd v LGB and Sons Pty Ltd
[2011] QCAT 294
•20 May 2011
| CITATION: | Darryn C Watts Consultants Pty Ltd v LGB and Sons Pty Ltd [2011] QCAT 294 |
| PARTIES: | Darryn C Watts Consultants Pty Ltd trading as Watts Constructions |
| v | |
| LGB and Sons Pty Ltd |
| APPLICATION NUMBER: | BDL162-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 8 April 2011 |
| HEARD AT: | Townsville |
| DECISION OF: | Ms Joanne Browne, Presiding Member Ms Keta Roseby, Member |
| DELIVERED ON: | 20 May 2011 |
| DELIVERED AT: | Townsville |
| ORDERS MADE: | The respondent pay the applicant the amount of $31,334.28 by 4.00pm on 17 June 2011. |
| CATCHWORDS: | Whether the subcontract was lawfully terminated – repudiation of Contract – labour and material costs to complete outstanding works under the subcontract Queensland Building Services Authority Act 1991, s 77 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self-represented |
| RESPONDENT: | No appearance |
REASONS FOR DECISION
Darryn C Watts Consultants Pty Ltd trading as Watts Constructions[1] engaged LGB and Sons Pty Ltd to paint the Combined Catholic Colleges Student Accommodation Facility at James Cook University, Townsville (“the site”). The painting works included rendering and painting internally and externally of the student accommodation. Watts Constructions claim that LGB and Sons Pty Ltd failed to complete the painting works as agreed.
[1] Pursuant to section 63 of the Queensland Civil and Administrative Tribunal Act 2009.
Mr John Robert Atkinson an employee and representative of Watts Constructions appeared at the hearing on 8 April 2011.[2] There was no appearance at the hearing for LGB and Sons Pty Ltd, in particular Mr Lawrence Buttigieg, its representative.
[2]See Statement of Darryn and Lynne Watts, directors of Darryn C Watts Consultants Pty Ltd dated 26 November 2010 (filed 29 November 2010) confirming that Mr John Robert Atkinson is an employee of Watts Constructions and is authorised to represent Watts Constructions in these proceedings.
The Tribunal is satisfied for the purposes of section 93 of the Queensland Civil and Administrative Tribunal Act 2009 that Mr Buttigieg received notice of the hearing – the Tribunal called Mr Buttigieg on the telephone at the commencement of the hearing. Mr Buttigieg advised the Tribunal that he was aware the matter was listed for hearing on 8 April 2011; however he thought the hearing was listed for a time later in the day. Mr Buttigieg informed the Tribunal that he was working and it would take him approximately two (2) hours to get to the hearing. Mr Buttigieg was informed by the Tribunal that the hearing would proceed given that the matter had previously been adjourned and Mr Atkinson was present at the hearing and was ready to proceed. The Tribunal told Mr Buttigieg that he should immediately travel to Townsville to attend the hearing. The Tribunal made several attempts to telephone Mr Buttigieg throughout the hearing on 8 April 2011; however Mr Buttigieg did not answer his mobile telephone.[3]
[3] The hearing concluded at approximately 3.35pm on 8 April 2011.
By way of background, this matter was listed for hearing on 23 November 2010[4] before member Joanne Browne. Mr Atkinson and Mr Buttigieg appeared at the hearing on 23 November 2010. Mr Buttigieg requested that the hearing be adjourned to another day on the basis that he did not bring his material to be relied upon with him, having left his documents at home. The hearing was adjourned to 9.30am on 7 December 2010 and further directions were made by the Tribunal for the filing and exchange of material.[5]
[4] As per directions made by Senior Member O’Callaghan dated 26 October 2010.
[5] As per directions made by Member Joanne Browne dated 23 November 2010.
Further directions were made by the Tribunal on 30 November 2010 vacating the hearing listed on 7 December 2010 and re-listing the matter for hearing at 9.30am on 8 April 2011.[6] The directions provided that “No further extensions will be granted for filing of material and the Hearing will proceed on the basis of material filed by 4.00pm on 14 December 2010.”
[6]As per directions made by Senior Member O’Callaghan dated 30 November 2010 and upon receipt by the Tribunal of a request for an adjournment of the hearing by Mr Buttigieg. A Notice of Hearing dated 28 March 2011 was issued to the parties stating that the hearing was listed for 9.30am on 8 April 2011.
Background
Watts Constructions entered into a contract with the James Cook University (the head contract) to construct student accommodation, such works to commence on 20 February 2009 and to be completed by 11 January 2010. Watts Constructions later engaged LGB and Sons Pty Ltd to conduct “painting and render works” and a Master Builders Commercial Subcontract Agreement dated 14 April 2009 was signed by the parties prior to LGB and Sons Pty Ltd commencing painting works in or about mid September 2009 (“the subcontract”). Attached to the subcontract were the Master Builders standard Terms and Conditions.[7] The original subcontract amount for the completion of the paint works as quoted by LGB and Sons Pty Ltd was $164,192.60.[8] There was a variation in writing for the use of “Astec [sic] paint externally” and LGB and Sons Pty Ltd issued a variation breakdown to Watts Constructions dated 14 May 2009 representing materials, equipment and labour.
[7] Exhibit 8.
[8]See “Quote” dated 25 March 2009 from LGB and Sons Pty Ltd referring to Customer: Watts Constructions, Exhibit 2 (Appendix A). See also “Purchase Order” dated 8 April 2009 issued by Watts Constructions to “Laurence Buttigieg Painting Service” referring to “Total $164,192.60”.
Mr Atkinson argues that the painting works were not completed by LGB and Sons Pty Ltd and Watts Constructions engaged other painters, some of whom were former employees of Mr Buttigieg, and purchased materials such as paint, to complete the painting works at the site to ensure completion of the works as required under the head contract.
The application filed on 31 May 2010 seeks an order for payment of an amount of $32,907.87, in particular the costs paid by Watts Constructions for labour and materials, to complete the outstanding painting works under the subcontract.[9] The Tribunal gave leave at the hearing to Mr Atkinson on behalf of Watts Constructions to amend the application filed 31 May 2010 to show the name of the applicant as Darryn C Watts Consultants Pty Ltd trading as Watts Constructions. Mr Atkinson filed and tendered statements together with supporting documents and gave sworn evidence at the hearing. Included in the material filed by Watts Constructions was a recalculation of the amount claimed of $35,214.28 as set out in the “reconciliation of subcontract payments”. Evidence was also given at the hearing by Mr Andrew Von Pein (painting subcontractor) on behalf of Watts Constructions.
[9]The application is a minor commercial building dispute for the purposes of the Queensland Building Services Authority Act 1991 and the Tribunal has the jurisdiction to hear the dispute by virtue of section 77.
Mr Buttigieg filed a response in the Tribunal on 30 June 2010. No supporting material or documents were filed by LGB and Sons Pty Ltd in compliance with the several directions made by the Tribunal for the filing and exchange of material to be relied upon at the hearing. Mr Buttigieg states in the response:
“I would like the Tribunal to dismiss the application by Watts and order that Watt’s pay the money owing to me. I feel the money owing to me is unreasonable and unfair. I will not put my name to work I was unable to complete.
…
Watts broke the contract first by not paying in time as set out in the contract. Watts denied me access to equipment and materials to enable me to complete the job. Watts then used my equipment, paint and workers to complete the job”.Issues for Determination
The Tribunal must consider the following issues in determining whether to make an order for the payment of money by LGB and Sons Pty Ltd to complete the outstanding painting works, as claimed by Watts Constructions:
1.Did LGB and Sons Pty Ltd breach the terms of the subcontract in December 2009 by applying Dulux paint to the exterior of the student accommodation building on the site as alleged by Watts Constructions? Can Watts Constructions recover the costs paid to approve the Dulux paint (the Sustainability House costs)?
2.Whether Watts Constructions lawfully terminated the subcontract on 2 February 2010.
3.In determining whether there was a lawful termination of the subcontract by Watts Constructions, did LGB and Sons Pty Ltd breach clause 2(a) of the Terms and Conditions by failing to attend at the site on 2 February 2010; and did Mr Buttigieg’s actions constitute a repudiation of the terms of the subcontract?
Evidence of Mr Atkinson
Mr Atkinson states that there were continual problems with LGB and Sons Pty Ltd submitting invoices for payment by Watts Constructions for the painting works under the subcontract and he therefore relies on emails exchanged between himself and Mr Buttigieg for “transparency”. Mr Atkinson also states that there were several variations to the subcontract and the variations were put in writing by Watts Constructions as set out in the “purchase order” and various documents including emails and tax invoices tendered at the hearing.[10] Mr Atkinson also tendered documents evidencing the various payments he states were made by Watts Constructions to LGB and Sons Pty Ltd under the subcontract.[11]
[10] Exhibit 2 together with attachments.
[11] Exhibits 3 and 4.
Mr Atkinson states that Mr Buttigieg was instructed to use certain paint for the external surfaces, namely Astec paint, at the commencement of the painting works. Mr Atkinson states that the Astec paint has “material properties” resulting in a reflection of the sun’s rays.[12] In particular, Mr Atkinson states that the Astec paint complied with Section J of the Building Code which enabled Watts Constructions to delete some items such as internal linings and insulation from the scope of works under the head contract and this was a saving of money to the client.[13] Mr Atkinson states that Mr Buttigieg used an alternative product, Dulux paint and this cost Watts Constructions additional money to have the substitute paint (Dulux) certified in accordance with Section J of the Building Code. Mr Atkinson refers to various documents to support his submission that Mr Buttigieg was directed and had agreed to use Astec paint to the exterior of the student accommodation building. In particular Mr Atkinson states that LGB and Sons Pty Ltd had provided a written variation to Watts Constructions based on the application of Astec paint and refers to emails exchanged and a document prepared by LGB and Sons Pty Ltd: the Variation Breakdown dated 14 May 2009, which refers to “Product is EC100 dirt guard elastic (gloss or satin finish)…Complies with Section J of Builders Code”.[14] Mr Atkinson states that “EC100 dirt guard” is a reference to “Astec paints”.[15]
[12] Statement of Mr Atkinson, para 5 (Exhibit 2).
[13] Ibid, a variation in the amount of $17,678.00 (plus GST) was made as per VOR5RRR.
[14]Exhibit 6. The Variation No. V05RR representing scope of works refers to “supply and application of Dirt Guard IR Elastic paint as recommended by Nev Ogden”. The email from Watts Constructions to Lawrence Buttigieg dated 9 April 2009 (Exhibit 6) refers to “Astec paints” and that Mr Buttigieg should “please coordinate with Astec paints…”.
[15]There is also reference to “Astec Paints Three (3) coats EC 100 Energy Rated exterior paint system…” in the email dated 20 March 2009 from the Architects to Watts Constructions (Exhibit 6). The email from Watts Constructions dated 8 April 2009 to Lawrence Buttigieg refers to the contract start date and retentions – “Also can you please forward a variation price for the use of Aztec paint externally” (Exhibit 2, Appendix B).
Mr Atkinson stated that on or about 20 December 2009, Watts Constructions became aware through their architect on the site that Mr Buttigieg and his employees were applying Dulux paint to the exterior surfaces of the student accommodation. Mr Atkinson states that the site was busy and therefore the site foreman did not become aware of the issue; that is the use of the Dulux paint, until some of the work had been undertaken. Mr Atkinson argues that it was not the responsibility of Watts Constructions to check that LGB and Sons Pty Ltd were complying with the terms of the subcontract to use a specific product, Astec paint. Mr Atkinson states that he made enquiries with a Dulux paint representative and was advised that the existing Dulux paint applied did not comply with section J of the Building Code. Mr Atkinson states that Mr Buttigieg was instructed by Watts Constructions in December 2009 to stop painting the exterior of the building, however Mr Buttigieg continued to paint the interior of the student accommodation. Mr Atkinson states that he had discussions in December 2009 with the site foreman and Mr Buttigieg about the Dulux paint that had been applied – Mr Buttigieg admitted to him that he had used Dulux paint as a substitute for Astec paint as he had been told by a Dulux paint representative that the Dulux paint would “do the same job”. Mr Atkinson states that although Mr Buttigieg may not have understood the importance of using a paint which attracted certain “thermal qualities”, Mr Buttigieg changed the type of paint (from Astec to Dulux) without the authority of Watts Constructions and this was in breach of the subcontract. Mr Atkinson states that in December 2009, Watts Constructions engaged Sustainability House to test the product (Dulux paint) and the Dulux paint was later approved by Sustainability House on 11 January 2010. Mr Atkinson states that on 13 January 2010 he sent an email to Mr Buttigieg stating “Find attached report and invoice [from Sustainability House]. We confirm our instructions to proceed with the final coats of paint to the building exterior”.[16] Mr Atkinson states that the cost of obtaining the approval from Sustainability House as claimed by Watts Constructions is $4,070.00.[17]
[16]Exhibit 2, Appendix B.
[17]Mr Atkinson in his statement, states that he is not claiming additional time spent resolving the “technically complex issue” which equates to 45 hours per week for 3 weeks at $130.00 per hour (Exhibit 2). The invoice from Sustainability House is dated 22/01/10 and is in the amount of $4,070.00 (inc GST), Exhibit 2, Appendix B.
Mr Atkinson gave evidence at the hearing that on 2 February 2010 he received a phone call from the site foreman saying that Mr Buttigieg and his workers had left the site. Mr Atkinson states that he went to the site on 2 February 2010 and the only painters present were Mr Andrew Von Pein, Mr Jesse Von Pein and Mr Kevin Thompson. Mr Atkinson states that there had been some earlier issues in relation to the internal painting works being damaged by other workers on the site. Mr Atkinson states that Mr Buttigieg was paid extra money to rectify the damage to the internal painting works and this was paid as part of a variation to LGB and Sons Pty Ltd on 2 February 2010. Mr Atkinson states that after payment to Mr Buttigieg of the additional internal painting works the amount outstanding by Watts Constructions under the subcontract was $1,311.51 and that immediately following the payment on 2 February 2010, “LGB and Sons left site and took rendering product with them”.
Mr Atkinson states that after he was advised by the site foreman that Mr Buttigieg had failed to attend the site to complete the painting works, he sent an email to Mr Buttigieg on 2 February 2010 stating that “…there is no painting or rendering occurring [at the site]…I request your presence on site 100% until the works are complete”.[18]
[18] Appendix D to statement of Mr Atkinson (Exhibit 2).
Mr Atkinson states that he attended the site on 3 February 2011 and saw Mr Buttigieg on the site and that he was retrieving some of his materials. Mr Atkinson states that he and Mr Buttigieg had a discussion about the subcontract works and he “was extremely frustrated with damage caused by other trades for which Watts had paid to have [remedied]”.[19] Mr Atkinson gave evidence at the hearing that during his conversation with Mr Buttigieg on 3 February 2010, Mr Atkinson advised Mr Buttigieg that if he left the site without finishing the painting works he would be in breach of the subcontract. Mr Atkinson states that he was of the opinion that Mr Buttigieg left the site without any intention of returning.
[19] Ibid.
Mr Atkinson states that Watts Constructions engaged three (3) painters – Mr Andrew Von Pein, Mr Jesse Von Pein and Mr Kevin Thompson, who were left on the site on 2 February 2010; and another painter, Mr Mark Gibson at a later date, to complete the painting works on the basis that “there were significant liquidated damages applicable if the facility was not able to be occupied by the client at the start of the University academic year”.[20]
[20] Statement, para 11 (Exhibit 2).
In relation to securing the materials left on site by Mr Buttigieg, Mr Atkinson states that “Watts immediately secured all the painting materials on site”.[21] During the hearing Mr Atkinson gave evidence that Mr Buttigieg made no attempt to contact him to retrieve his materials left on the site and denied that he never allowed Mr Buttigieg access to his materials to complete the painting.
[21] Statement, para 12 (Exhibit 2).
Mr Atkinson states that Watts Constructions wrote to LGB and Sons Pty Ltd by letter dated 22 March 2010 stating that “the departure from [the site] on 2nd February 2010 and your non-compliance with our final request for your attendance on site to complete works at 12.07pm on 2nd February 2010 [by email] constitutes a breach of clauses 2a and 8c”.[22] Mr Atkinson states that in or about March 2010 Watts Constructions received an invoice for outstanding money from LGB and Sons Pty Ltd in the amount of $28,000.00 including GST – Watts Constructions responded in writing on 16 April 2010 to Mr Buttigieg’s invoice. Mr Atkinson states that the invoice was a “dummy” as there was no money owing by Watts Constructions to LGB and Sons Pty Ltd in March 2010 under the subcontract. Mr Atkinson states that there was an adjustment made in the amount of $2,469.50 in the “reconciliation of subcontract payments” prepared by Watts Constructions, in favour of LGB and Sons Pty Ltd representing the balance of money owing on invoice dated 22 January 2010. Mr Atkinson gave evidence at the hearing that Watts Constructions made several requests in writing to Mr Buttigieg requesting he submit an invoice showing the correct amount payable inclusive of GST as the original invoice for payment was calculated on an amount exclusive of GST. Mr Atkinson states that Watts Constructions made a “safe payment” of $10,000 to LGB and Sons Pty Ltd on 22 January 2010 and requested that Mr Buttigieg contact him to discuss – Mr Atkinson refers to an email dated 22 January 2010 sent to Mr Buttigieg.[23]
[22]Appendix D to the Statement of Mr Atkinson, Exhibit 2. A further letter was sent by Mr Atkinson to Mr Buttigieg dated 29 March 2010 noting that there had been no response by LGB and Sons Pty Ltd to their earlier letter.
[23]Exhibit 2, Appendix B.
Evidence of Mr Andrew Von Pein
Mr Von Pein signed a statement and gave sworn evidence on behalf of Watts Constructions at the hearing. Mr Von Pein was engaged by Mr Buttigieg together with his son to complete painting works at the site. Mr Von Pein states that he supervised the painting performed by the other painters on the site and worked five (5), sometimes six (6) days per week. Mr Von Pein stated that payment of his wages by Mr Buttigieg was unreliable – Mr Buttigieg would pay his wages by cheque and sometimes it would take a week for the funds to clear. Mr Von Pein states that Mr Buttigieg still owes himself and other painting contractors money for work performed: approximately $500.00 is owing to Mr Von Pein, $200.00 is owing to Mr Kevin Thompson and $100.00 is owing to Mr Jesse Von Pein.
Mr Von Pein states that on 2 February 2010 he was advised by another worker on the site that Mr Buttigieg “had taken off”. Mr Von Pein states that he telephoned Mr Atkinson and was advised that Watts Constructions would pay him and his workers to complete the painting works. Mr Von Pein stated that Mr Buttigieg had taken his paint and equipment with him however there were two (2) full drums of paint and approximately six (6) to eight (8) half drums of paint left behind at the site although the two (2) full drums of paint were the wrong colour. Mr Von Pein stated that the drums of paint left behind had been paid for by Mr Buttigieg and the approximate total cost of the paint would be $600.00.[24] Mr Von Pein states that the drums of paint were placed into a storage unit as he had been told by Mr Atkinson to finish off the job and clean up the job site – “there were bits and pieces everywhere”.Mr Von Pein stated that he worked for approximately two (2) hours on 2 February 2010 being the balance of the afternoon after Mr Buttigieg “took off”. Mr Von Pein states that he claimed on an hourly basis for the painting works performed by him and the other painters and they were paid by Watts Constructions.[25] Mr Von Pein verified that the hours claimed by himself and the other contractors were for labour to complete the outstanding painting works at the site. Mr Von Pein states that he did attempt to contact Mr Buttigieg on 2 February 2010; and that he would have returned the paint drums to Mr Buttigieg had he requested the paint be returned. Mr Von Pein states that the tins of paint are still in Watts Constructions’ storage facility and he may have used approximately one half (1/2) drum of paint to complete some internal painting after Mr Buttigieg left the site on 2 February 2010.
[24]This is based on an estimate of $120.00 per drum of paint as stated by Mr Von Pein at the hearing.
[25]Mr Von Pein states that he was paid a rate of $25 per hour for 207 hours, Mr Kevin Thompson was paid at a rate of $28 per hour for 18.8 hours, Mr Jessie Von Pein was paid at a rate of $22 per hour for 192 hours and Mr Mark Gibson was paid at a rate of $30 per hour for 219.4 hours.
Mr Von Pein also gave evidence about the application of Dulux paint to the exterior of the student accommodation building – he was directed by Mr Buttigieg to use Dulux paint so when Mr Buttigieg left the site on 2 February 2010, Watts Constructions had to purchase new paint so that Mr Von Pein and the other painters could finish the painting works.[26]
[26]Watts Constructions claim that the cost of the new paint purchased to complete the external surfaces is $5,301.32.
Findings
The Tribunal accepts the evidence of Mr Atkinson in relation to the various payments made by Watts Constructions to LGB and Sons Pty Ltd under the subcontract and finds that the payments made are supported by the various documents tendered at the hearing. The Tribunal also accepts the evidence of Mr Atkinson, supported by relevant documents, that the amount of “retention held on contract” as at 2 February 2010 was $1,311.51 and that Mr Buttigieg did not, despite Watts Constructions’ several requests in writing, submit further information to “validate” the calculation of the amount purportedly owing to LGB and Sons Pty Ltd as at 22 January 2010.
The Tribunal accepts the evidence of Mr Atkinson that Mr Buttigieg applied Dulux paint to the exterior of the student accommodation building and that LGB and Sons Pty Ltd had prior to painting the exterior of the building issued a written variation dated 14 May 2009 to use the paint product “EC100 dirt guard elastic” (Astec paint) to the exterior surfaces of the building. The Tribunal also accepts the evidence of Mr Atkinson that Mr Buttigieg was instructed by Watts Constructions in or about December 2009 to stop painting the exterior of the building and that Mr Buttigieg continued to paint the interior of the student accommodation building as required under the subcontract. The Tribunal finds that the work performed by Watts Constructions, that is engaging the services of Sustainability House to approve the application of Dulux paint, was extra work outside the scope of the subcontract and that this was a purported variation. The Tribunal also finds that Watts Constructions have failed to comply with clause 5 (variations) of the terms and conditions of the subcontract – Watts Constructions do not authorise the works (engaging Sustainability House) in writing as required under clause 5(f); nor was there any agreement in writing between the parties as to payment of the costs of the purported variation (the costs payable to Sustainability House). The Tribunal cannot be satisfied on the evidence given by Mr Atkinson alone that LGB and Sons Pty Ltd agreed to the work being performed by Watts Constructions that is engaging the services of Sustainability House and that LGB and Sons Pty Ltd had agreed to pay the Sustainability House costs. Furthermore, Watts Constructions directed Mr Buttigieg to continue with the painting works to the exterior of the building on 13 January 2010 by stating “[we] confirm our instruction to proceed with the final coats of paint to the building”, notwithstanding the alleged breach of the subcontract by LGB and Sons Pty Ltd, as argued by Mr Atkinson. The Tribunal finds that Watts Constructions has therefore waived any entitlement to claim the Sustainability House costs from LGB and Sons Pty Ltd for breach of the subcontract as alleged by Watts Constructions.
The Tribunal accepts the evidence of Mr Atkinson supported by the evidence of Mr Von Pein that on 2 February 2010 Mr Buttigieg failed to attend the site on 2 February 2010 and that Mr Buttigieg attended the site on 3 February 2010 to collect his materials. The Tribunal also accepts the evidence given by Mr Von Pein that as at 2 February 2010, Mr Von Pein and other painting contractors were owed money by Mr Buttigieg for painting work performed under the subcontract. The Tribunal finds that Mr Buttigieg’s actions such as: failing to pay painting contractors for work performed under his direction as required under clause 9 of the terms and conditions, failing to attend the site to complete the painting works as required under clause 2 of the terms and conditions; and attending the site on 3 February 2010 to remove material and equipment, was a clear intention not to be bound by the subcontract constituting repudiation which entitled Watts Constructions to terminate the subcontract.[27]
[27]See Shevill v Builders Licensing Board [1982] 149 CLR 620 referred to in Ingles Homes [QLD] Pty Ltd v Mr & R Hudson Plumbing Pty Ltd [2010] QCAT 556 at [54].
The Tribunal accepts the evidence of Mr Atkinson supported by the evidence of Mr Von Pein, that Watts Constructions engaged the services of other painting contractors after Mr Buttigieg failed to attend the site on 2 February 2010; and that this was an acceptance by Watts Constructions of Mr Buttigieg’s breach of the terms of the subcontract.[28] Watts Constructions later confirmed the termination of the subcontract in writing to LGB and Sons Pty Ltd by letter dated 22 March 2010. The Tribunal accepts the evidence of Mr Atkinson supported by Mr Von Pein, that he only directed Mr Von Pein to pack up the leftover paint drums and complete the outstanding painting works after Mr Buttigieg failed to attend the site on 2 February 2010 and that Mr Atkinson would have returned the paint drums to Mr Buttigieg had he attended the site to complete the painting works on 2 February 2010. Furthermore, the Tribunal accepts the evidence of Mr Von Pein that he only used one half (1/2) drum of Mr Buttigieg’s paint and the remainder of the paint is still in storage and available for Mr Buttigieg to collect from Watts Constructions.
[28]See Holland v Wiltshire (1954) 90 CLR 409 referred to in Wenn v Café San Paul P/L [2008] QCA 108 at [43] and see Ryder v Frohlich [2004] NSWCA 472 at [117]-[118] and Ingles Homes [QLD] Pty Ltd v Mr & R Hudson Plumbing Pty Ltd [2010] QCAT 556 at [57].
The Tribunal accepts the evidence given by Mr Von Pein in relation to the labour costs paid by Watts Constructions to Mr Andrew Von Pein, Mr Jessie Von Pein, Mr Kevin Thomson and Mr Mark Gibson; and the evidence given by Mr Atkinson together with supporting documents in relation to the total costs incurred by Watts Constructions including materials, to complete the outstanding painting works under the subcontract referred to as item reference numbers 19 to 29 in the “reconciliation” and totalling $39,126.44. The Tribunal accepts the evidence of Mr Atkinson that there was no money owing by Watts Constructions to LGB and Sons Pty Ltd as at February 2010 under the subcontract, however there was an amount of $2,469.50 owing to LGB and Sons Pty Ltd in respect of an invoice dated 22 January 2010. The Tribunal having accepted the evidence of Mr Atkinson and Mr Von Pein that Mr Buttigieg was never denied access to the paint drums left at the site on 2 February 2010 and that the paint is still in storage available for Mr Buttigieg to collect from Watts Constructions, finds that the one half (1/2) paint drum used by Mr Von Pein after 2 February 2010 to complete some of the outstanding painting works at the site was paint belonging to Mr Buttigieg and the cost of the paint used should therefore be deducted from the total costs claimed by Watts Constructions to complete the painting works under the subcontract. The Tribunal finds that having accepted the evidence given by Mr Atkinson and Mr Von Pein in relation to the cost of the paint belonging to Mr Buttigieg, the amount of $60.00[29] should be deducted from the total costs claimed by Watts Constructions to complete the painting works.
[29] Based on an estimate given by Mr Von Pein of $120.00 per paint drum.
The Tribunal, having been satisfied that the subcontract was properly terminated by Watts Constructions, has determined that the following amount is owing by LGB and Sons Pty Ltd to Watts Constructions:
Amount claimed (to complete outstanding works) $ 39,126.44
Less retention held on contract $ 1,442.66
Less money owing on invoice (22 January 2010) $ 2,469.50
Less deduction (Sustainability House costs) $ 4,070.00
Less deduction (paint belonging to Mr Buttigieg) $ 60.00
TOTAL $ 31,084.28Costs
The starting point concerning costs in QCAT is that each party must bear its own.[30] This presumption may, however, be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party.[31] The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision-maker. In determining whether it is in the interests of justice to award costs against another party the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party.[32]
[30]Queensland Civil and Administrative Tribunal Act 2009 (“the Act”), s 100.
[31]Ibid, s 102(1).
[32]Ibid, s 102(3).
Watts Constructions claim the amount of $250.00 being the “costs for lodgement with QCAT”.Mr Buttigieg as representative of LGB and Sons Pty Ltd failed to attend the hearing on 8 April 2011 and did not comply with the former directions of the Tribunal for the filing and exchange of material to be relied upon at the hearing. The Tribunal is satisfied having regard to the discretionary power to award costs under section 100 and the issues to be determined in this matter that it is appropriate to make an order for costs in the amount of $250.00 as claimed.
The Tribunal orders that LGB and Sons Pty Ltd pay the amount of $31,334.28 to Watts Constructions by 4.00pm on 17 June 2011.
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