Franklin (Qld) Pty Ltd v Holliday - [2015] QCAT 217

CITATION:

Franklin (QLD) Pty Ltd v Holliday [2015] QCAT 217

PARTIES:	Franklin (QLD) Pty Ltd (Applicant)
v
Fiona Holliday and David Holliday (Respondent)

APPLICATION NUMBER:	BDL093-14
MATTER TYPE:	Building matters
HEARING DATE:	1 May 2015

HEARD AT:

Mackay

DECISION OF:

Member Rogers

DELIVERED ON:

16 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That Fiona and David Holliday pay Franklin (QLD) Pty Ltd the amount of $18,448.83 on or before 19 August 2015.

2. That the counterclaim of David and Fiona Holliday be dismissed.

CATCHWORDS:

BUILDING DISPUTE – where variations to contract not written and signed- where counter claim already before tribunal in different proceedings- where respondent failed to appear at hearing- whether tribunal grant approval for applicant to recover amount for variation.

Domestic Building Contracts Act 2000 (Qld) s 84(2)

APPEARANCES:

APPLICANT:	Franklin (QLD) Pty Ltd through its Director Francis John Galea,
RESPONDENT:	No appearance

This matter was part heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Procedural Matters

The applicant builder is seeking an order for the payment of the sum of $36,140 plus interest plus costs. This claim relates to a contract dated 25 June 2013 for the construction and completion of a new garage and storeroom (the extensions contract) at the building owners’ home and is restricted to work that formed part of that contract. Part of the claim relates to unwritten variations to the contract and requires leave of the Tribunal pursuant to s 84(2) of the Domestic Building Contracts Act 2000 (Qld), (the Act).
The building owners filed a response and counter claim on 27 May 2014 seeking orders that the builder’s claim be dismissed with costs and orders relating to the final inspection of the extensions.
The owners then referred to a building contract dated 21 August 2012 entered into by the parties for the construction of a concrete pool, (the pool contract) and applied for an order
‘to repair the pool surface and pool leak and leave the pool in ‘as-new’ condition or compensate us sufficiently to enable a professional and experienced builder to do so’
On 15 May 2014 the owners filed Application GAR167-14 in the tribunal seeking a review of a decision dated 17 April 2014 of the Queensland Building and Construction Commission, which declined to issue orders sought for the rectification of the pool. A letter provided to the tribunal in these proceeding from QBCC to the owners dated 4 November 2014 indicates the Commission found defective work but it was unable to issue an order until the building dispute is resolved.
The tribunal had adjourned the QBCC application pending the determination of this application.
This application was listed for hearing at 9.30 am on 1 May 2015 at Mackay. The applicant builder, through its director Mr Galea was present. The respondent building owners were not present. Repeated attempts to contact the owners by telephone were unsuccessful.
I satisfied myself the owners…

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.

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Details

Case: [2015] QCAT 217
Decision Date: 16 June 2015

CaseChat Overview and Summary

Franklin (Qld) Pty Ltd, a building company, sued David and Fiona Holliday, homeowners, in the Queensland Civil and Administrative Tribunal. The dispute revolves around the cost of extra works performed during the construction of a pool and house extensions, which the builder claims were not adequately documented or agreed upon in writing. The homeowners dispute these claims and assert that the builder frequently proposed changes without proper authorization and failed to credit them for lower costs resulting from those changes.

The central legal issue was whether the tribunal should grant the builder's application to recover the additional costs claimed for variations to the original contract, despite the fact that these variations were not documented in writing as required by the contract. Another issue was whether the tribunal could proceed with the hearing in the absence of the respondents, given that a counterclaim by the respondents was already before the tribunal in a separate proceeding. The builder argued that the respondents' absence should not prevent the tribunal from making a decision, while the respondents contended that their absence prejudiced their ability to defend the claims.

The tribunal found that the builder had not followed the contractual requirement to obtain written and signed approval for the variations. However, it also noted that the builder had a longstanding relationship with the homeowners and had acted in good faith, assuming that he would be compensated for the additional work. The tribunal concluded that the builder was entitled to recover the additional costs, subject to a reduction to account for the homeowners' failure to provide proper written quotations for the work. The tribunal also determined that it could proceed with the hearing in the absence of the respondents, as the issues in the two proceedings were separate and did not overlap significantly.

The tribunal ordered that the homeowners pay the builder the amount of $18,448.83, representing the cost of the additional works, reduced by the amount of $1,000 to account for the builder's failure to provide written quotations. The tribunal also dismissed the homeowners' counterclaim.

Orders

Orders of the court

1. That Fiona and David Holliday pay Franklin (QLD) Pty Ltd the amount of $18,448.83 on or before 19 August 2015.

2. That the counterclaim of David and Fiona Holliday be dismissed.

Background

Background to the litigation

The amounts claimed by the builder are as followsItem Claim Invoicea) Extra works 6,877.50 #6008b) Shed Extension 8180.72 #5678c) Exposed Driveway 2808 Signed variationd) Slab 1253 Signed variatione) Extra electrical 4825.19 #5659f) Building fees 5000.38 #2134g) Contract – balance owing 8043 #4166Background Mr Galea, a director of the applicant company, states that while working on the house next door he established a personal friendship with David and Fiona Holliday. Mr Holliday approached him to construct a pool and during the construction of the pool he was asked to build the extensions to their house. As a result of their friendship he says his approach to aspects of the job was more informal than would have been the case if he was dealing with an unknown owner and trust played a large role in the works that were carried out.[1][1]Builders statement filed 22 August 2014 at paragraph 6. Mr Galea says that as the job progressed Mr Holliday requested changes and he agreed to carry them out. He said in some instances changes were made on the run so they did not hold up the project. Once changes were agreed he advised the owners the changes would cost extra and he assumed he would be paid. He said once the conflict had arisen and it became clear there was a dispute he issued Invoice #5678 on 31/10/2013 and Invoice #6008 on 5/12/2013 to recover those costs. Invoice #2134 was issued on 28/11/2012 and covered the planning for the new Garage. Invoice #5659 issued on 26/09/2013 and had been the subject of discussion and dispute in relation to extra electrical work. Invoice #4166 issued on 15/11/2013, the date of practical completion, for the balance owing under the contract. Mr and Mrs Holliday deny these accusations[2]. They said the course of the dealings was professional, as evidenced by written contracts for both the pool and extension. They said during the extension works, the applicant continually suggested changes and modifications to the plans.[3] When changes were discussed, they asked for written quotations. They say at no time did they instruct the builder to carry out ‘extra works’.[2]Owners statement filed 11September 2014 at paragraph 5 – 6.[3]Owners statement filed 24 July 2014 at paragraph 15. In addition they say changes were made to the plans to suit the builder and no credit was allowed for the lower costs that resulted. They point to a retaining wall, included on the plans, which was removed from the plans without consulting them. They say the extra works are unapproved variations, which are the result of an error by the applicant whilst preparing the foundations for the extension.[4][4]Owners statement filed 28 January 2015 at paragraph 40 - 42. The owners have provided a quote from O’Brien Plumbing Services Mackay Pty Ltd dated 16/01/2015 for $12,787.50 for rectification work to the plumbing in the storeroom and shed, which includes obtaining council approval. The owners also state‘As the applicant had abandoned the site 29 November 2013, with no intention of returning …..the Owner sought trades to complete the Works to a satisfactory standard and in turn obtain a Final Inspection Certificate’. The relevant legislation

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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