Davis v Gray

[2017] QCAT 120

CITATION:

Davis v Gray [2017] QCAT 120

PARTIES:

Vicki Davis
(Applicant)

v

John Norman Gray
(Respondent)

APPLICATION NUMBER:

BDL067-16

MATTER TYPE:

Building matters

HEARING DATE:

19 January 2017

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

DELIVERED ON:

31 March 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

The application is dismissed.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – PARTIES – GENERAL PRINCIPLES - where a written contract in which parties were clear was replaced by a written contract where parties were unclear – where subsequent conduct suggested a possible change of party – whether there was a change of party

Pico Holdings, Inc v Wave Vistas Pty Ltd [2005] HCA 13
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8

APPEARANCES:

APPLICANT:

Self-represented

RESPONDENT:

Self-represented

REASONS FOR DECISION

1. In this application Vicki Davis claims a total of some $55,024.31 from John Gray in a commercial building dispute.  She limits her claim to $50,000 which is the Tribunal’s financial limit in such a dispute.[1]

   [1]The financial limit can however, be enlarged with consent of the parties: section 78 Queensland Building and Construction Commission Act 1991.

2. The resolution of this claim turns on whether Mr Gray had any obligations to Mrs Davis.  There is some uncertainty as to whether it was he, or his company Qualitybuild Pty Ltd ACN 129 312 456,[2] that contracted to provide building services to Mrs Davis.  Qualitybuild was clearly the party on the original contract.  But that contract was replaced by a contract where the party was unclear.  And some later events suggest it was possible that Mr Gray personally became the contracting party instead.  All work ceased in October 2014, and then Qualitybuild was deregistered on 5 July 2015.  So when Mrs Davis made the application to the Tribunal on 14 March 2016 she sued only Mr Gray.

   [2]Of which he was the sole director and shareholder.

3. The claim is in two parts:-

   a) A claim for $16,480 for defective work.

   b) A claim for $38,544.31 being money paid to Mr Gray but which was an overpayment.

4. Claim a) turns in the first instance on the question whether Mr Gray was a party to the contract with Mrs Davis.  If it was Qualitybuild and not Mr Gray who owed the duty to do the work properly, then this claim will not succeed against Mr Gray.

5. Claim b) in theory could be good against Mr Gray even if he was not a party to the contract.  This could be, for example, if Mrs Davis entrusted him with her money as contractual payments but he misappropriated it.

6. Whether a person is a contracting party should be determined in accordance with the objective theory of contract.  This means that the question to ask is who a reasonable person in the position of the known contracting party would think was the other contracting party.[3]  Sometimes this question is closely allied to whether there was a contract at all, or whether the proposed other contracting party intended to create legal relations,…