Gillies v De Marco
[2014] QCAT 500
•7 October 2014
| CITATION: | Gillies v De Marco [2014] QCAT 500 |
| PARTIES: | Colin Hugh Gillies (Applicant) |
| v | |
| Robyn De Marco (Respondent) |
| APPLICATION NUMBER: | BDL023-14 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 22 August 2014 |
| HEARD AT: | Southport |
| DECISION OF: | Member Deane |
| DELIVERED ON: | 7 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Colin Hugh Gillies is to pay Robyn De Marco the sum of $972.51, by: 4:00pm 21 November 2014. |
| CATCHWORDS: | DOMESTIC BUILDING DISPUTE – No written contract – unlicensed contractor – series of domestic building contracts – deemed a single contract – total contract sum in excess of regulated amount – not entitled to any amount for labour or profit Queensland Building and Construction Commission Act 1991 (Qld), s 4A, s 42, Division 8 (s 43D – s 47) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Colin Hugh Gillies, self represented |
| RESPONDENT: | Robyn De Marco, self represented |
REASONS FOR DECISION
Mr Gillies has been involved in the construction industry for many years. His evidence was that he was mainly involved on large projects in other States and is now semi-retired. It is not disputed that he performed some renovation work at Ms De Marco’s apartment associated with the installation of a new kitchen and creation of a second bedroom and that he was paid the sum of $2,825.
The agreement as to the works to be performed and the price to be paid was not reduced to writing. This is a major source of the dispute. Mr Gillies has sought payment for his labour at a rate of $52.50 per hour plus GST. He concedes that he and Ms De Marco never expressly agreed to an hourly rate or a fixed price for performance of various parcels of work.
Mr Gillies claims Ms De Marco still owes him money for work performed. Ms De Marco contends that she only agreed to pay for Mr Gillies to perform some carpentry work i.e. build some walls and perform plastering work, the estimate for which was ‘about $2,000’. Mr Gillies acknowledges that was the initial estimate for that work. Ms De Marco acknowledges that he did some demolition work though she contends that she only agreed for him to remove a few tiles and says that the demolition work performed was in excess of what she agreed that he should do, specifically that he should not undertake jack hammering work.
Mr Gillies sought payment of $4,165.74 together with costs.[1] The items claimed are:
a) Materials supplied and subcontractors as per invoice 18/12 $1,798.39
b) Labour to all work described and time sheets supplied $4,793.25
c) Amount paid to MG Kitchen on Ms De Marco’s behalf $345.00
d) Supply Dishwasher Hose $54.10
[1]Exhibit 1, Application.
From these amounts Mr Gillies deducts the amount paid to derive the balance claimed. Mr Gillies gave evidence that he had left a hand written ‘final account’ for Ms De Marco on or about 19 December 2013 except that he noted that at that time he had not claimed for GST on his labour. The amount for labour in the ‘final account’ was stated to be $4,357.50. If 10% GST is added to that amount it equals $4,793.25, the amount now claimed for labour.
Ms De Marco contends that Mr Gillies is an unlicensed contractor and seeks a refund in the amount of $972.51.
The informality of the arrangement is in part explained by the fact that at the time of the initial discussion and while the work was being performed Mr Gillies knew Ms De Marco socially as his then partner and Ms De Marco are friends. Mr Gillies’ relationship with his partner has since ended and his relationship with Ms De Marco has also deteriorated. Because the arrangement was not formalised and given the pre-existing social relationship there may have been misunderstandings as to whether work Mr Gillies performed was in the nature of attempting to assist a friend or in the nature of work for which payment was expected.
Mr Gillies also sought to explain the informality by reference to an agreement with Ms De Marco that she would pay in cash. No or little documentation was to be produced as a consequence and GST would not be payable resulting in a lesser price.
Ms De Marco disputed that she was attempting to avoid paying GST and denied that there was an agreement that she would pay cash. Ms De Marco was evasive when questioned about paying contractors in cash and payment of amounts for GST. Despite warning Ms De Marco that continued evasive answers could be grounds for me drawing an adverse inference Ms De Marco continued to be evasive. I find that it is more likely than not that there was an agreement to pay in cash and thereby avoid the payment of GST. This is consistent with Mr Gillies’ final account, which is a contemporaneous document.
Mr Gillies is the applicant and bears the burden of establishing on the balance of probabilities that he is entitled to the amounts claimed.
Mr Gillies contends that there were a number of separate oral agreements with Ms De Marco for the performance of work, that none of them was for an amount greater than $3,300 and therefore he did not need to be licensed. Mr Gillies also contends that a relevant matter is that Ms De Marco was an ‘Owner Builder’[2] but was unable to explain to me why he considered that it was a relevant matter and its consequences.
[2]Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), Division 8 (s 43D – 47).
A ‘domestic building contract’ is a contract to carry out domestic building work but does not include a contract between the holder of an owner-builder permit and a building contractor.[3] There is no evidence before me that Ms De Marco held an owner–builder permit.
[3]Domestic Building Contracts Act 2000 (Qld) (DBC Act), s 7(1), s 7(2)(c).
I was not directed to and have not located any provisions of the QBCC Act or DBC Act as to relevant consequences if Ms De Marco ought to have held an owner-builder permit but did not do so.
A ‘building contractor’ means a person who carries out domestic building work.[4] Renovation of any residential premises is domestic building work.[5] A regulated contract is a domestic building contract for more than the regulated amount,[6] currently $3,300 (incl GST).
[4]DBC Act, Schedule 2.
[5]Ibid, s 8(1)(b), s 13.
[6]Ibid s 9(1).
Ms De Marco contends that the oral agreements were not separate as they all arose out of the renovation works, in total the amount claimed exceeds $3,300 and as Mr Gillies was not relevantly licensed he is not entitled to receive payment other than as allowed under s 42 of the QBCC Act so he ought to be ordered to refund monies received in excess of $1,852.49 being the amount for outlays Ms De Marco concedes Mr Gillies paid.
Mr Gillies concedes he initially proposed to project manage or perform all of the renovation work but that Ms De Marco chose to engage a number of contractors to perform parts of the work. He contends that as the job progressed separate oral agreements were formed.
The DBC Act provides that if a building contractor and owner enter into a series of separate domestic building contracts for carrying out domestic building work they are to be taken as a single contract and the contract price is the sum of the contract prices.[7] The QBCC Act contains a similar provision.[8]
[7]Ibid s 17, s 17A.
[8]QBCC Act s 4A.
I find that the arrangements between Mr Gillies and Ms De Marco constituted a series of domestic building contracts and therefore a single contract. The total contract sum for domestic building work was more than $3,300.
I find that Mr Gillies was required to hold a licence. A person must not carry out building work unless the person is appropriately licensed.[9] Such a person is only entitled to claim the amount paid by the person in supplying the materials and labour if the costs were reasonably incurred, is not entitled to any amount for the person’s own labour and is not entitled to any amount in the nature of profit.[10]
[9]QBCC Act s 42(1).
[10]Ibid s 42(4).
At the hearing Mr Gillies tendered a revised break up of his claim.[11] This document was substantially the same as a document filed earlier in the proceeding.[12]
[11]Exhibit 9.
[12]Undated Statement of Claim, Exhibit 2.
In so far as Mr Gillies claims for his labour such a claim cannot succeed.[13] In so far as he has expended moneys on outlays which are reasonable he is entitled to payment. Mr Gillies did not claim any amount in the nature of a profit margin. Ms De Marco concedes Mr Gillies expended $1,852.49 for supply of materials and equipment hire[14] and paid a subcontractor, Greg Sarny.[15]
[13]QBCC Act s 42(4)(b)(i).
[14]$1,219.99.
[15]$632.50.
Mr Gillies also claims that he paid MG Kitchens $345, the balance of their contract sum. There is some dispute as to the correct balance. Ms De Marco acknowledged that the balance of the MG Kitchens account was $300.[16] Mr Gillies concedes that there was no agreement with Ms De Marco that he would pay the kitchen contractor, MG Kitchens and that he undertook to do so of his own volition. He also conceded that there was some small imperfection with the work. There had been no prior pattern where instalment payments to MG Kitchens were paid by Mr Gillies and reimbursed. In these circumstances I find that it was not reasonable for Mr Gillies to pay the amount and seek reimbursement.
[16]Letter Ms DeMarco to Mr Gillies dated 15 January 2014.
Ms De Marco has paid $2,825. Mr Gillies is only entitled to $1,852.49. The excess ought to be refunded.
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