Habul v Bakhshi - [2013] QCAT 501

CITATION:

Habul v Bakhshi [2013] QCAT 501

PARTIES:	Omar Habul (Applicant)
v
Abbas Bakhshi (Respondent)

APPLICATION NUMBER:

BDL353-12

MATTER TYPE:

Building matters

HEARING DATE:

6 May 2013 and subsequently on the papers

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Member

DELIVERED ON:

25 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

BUILDING CONTRACT CLAIM- where homeowner claims defective work against a building contractor - where orders previously made against corporate entity in respect of same claim- whether contract is between the homeowner and the contractor personally or the corporate entity

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Habul represented himself.

RESPONDENT:

Mr Bakhshi represented himself.

REASONS FOR DECISION

This proceeding involves a small claim, but one which has a somewhat unusual history.
Mr Habul, who is a builder, claims damages of $5,972 from Mr Bakhshi, a painter, for rectification of painting works done at his own residence which he alleges were defective. He had previously claimed precisely the same amount plus costs in an earlier application filed in the Tribunal (BDL235-11). In that earlier proceeding (the first proceeding), he nominated as the respondent, Abbas Bakhshi ABS Painting Pty Ltd.[1] The more recent application nominates only Abbas Bakhshi as respondent.
[1]The defects schedule attached to the application names only Abbas Bakhshi as respondent but do not consider this significant having regard to the other matters discussed in these reasons.
The respondent in BDL235-11 did not file a response to the application within the time frames required. Upon the application of Mr Habul, a Member of the Tribunal made default orders in the first proceeding on 6 December 2011 requiring ABS Painting Pty Ltd to pay to Mr Habul the sum of $6,237, being $5,972 and costs.
In early 2012, ABS Painting unsuccessfully sought to have the default decision set aside. On 3 July 2012, some 8 months after the Tribunal had made its default orders, lawyers who filed the documents on Mr Habul’s behalf wrote to the Tribunal stating that Mr Bakhshi is identified as the respondent and asking whether ‘the record may be corrected to correctly identify the Respondent as Abbas Bakhshi.’ It is not apparent what transpired following that correspondence. However, the orders remain as made in December 2011.
Subsequently in late November 2012, a second application was filed by Mr Habul in BDL353-12. That proceeding (the second proceeding) was listed for hearing before me on 6 May 2013.
At the hearing on 6 May 2013, Mr Habul stated that ABS Painting Pty Ltd had not made payment in accordance with the Tribunal’s default order (in the first proceeding) and he now (in the second proceeding) seeks an order personally against Mr Bakhshi. Mr Habul submitted that the facts he relies upon are exactly the same as those relied upon in BDL235-11. He tendered a copy of the order made by default in BDL235-11 in support of his second application.
I was unable to obtain the file BDL235-11 on the day of the hearing. After hearing some evidence from the parties, I adjourned the matter part-heard to a date to be fixed, and directed that file BDL235-11 be retrieved from archives so that I may consider it.
I also directed that Mr Habul file and serve written submissions as to the basis on which he submits that the application may be further considered given that he has previously made what he described as the same claim in the first proceedings. Mr Bakhshi was directed to respond. Both parties were also directed to file any further statements of evidence relied upon.
Both parties subsequently filed further documents. Mr Habul filed another affidavit on 22 May 2013. Mr Bakhshi filed written submissions, together with a witness statement of Reza Jaffari and an unsigned witness statement of Kazem Jafari on 8 July 2013. I have given no weight to the further statements provided by Mr Bakhshi as one is unsigned and in any event neither relates to the events at issue. They are in the nature of character witness statements.
Mr Habul could only possibly be entitled to succeed on his claim for damages in the second proceeding if, among other things, there was a contract between him and Mr Bakhshi in respect of the painting works. For reasons that I will explain, I do not accept that there was such a contract.
Who were the parties to the contract?
Mr Habul’s Evidence
As discussed earlier, Mr Habul recounted the history of the first proceeding. He tendered a copy of the Tribunal’s default decision made in the first proceeding in support of the claim in the second proceeding. He stated that the Tribunal made a mistake when it gave the default decision and that it should have made its orders against Mr Bakhshi personally because Mr Bakhshi’s name appears on the quotation from ABS Painting for $18,000.[2]
[2] Exhibit 1, attached Quotation of ABS painting Pty Ltd dated 1/11/2010.
The quotation was for painting the ‘complete interior and the external and the bolconey taxchre’ (sic). There are various handwritten notes on the quotation. These include a note to the effect that GST is included in the $18,000 total; ‘9000’ is written several times, once as a total, and once it appears, to indicate that, 9000 less totals $9000. ‘$9500’, ‘$2500’, ’70 ‘ and ‘200’ are also handwritten on the quotation, and several circles are drawn on it. It is difficult to understand what the notes are intended to convey. Also handwritten is the name ‘Abbas Bakhshi’, above the printed words ‘ABS Painting Pty Ltd’.
Mr Habul relies on this quotation, as amended by the hand-written notes referred to, to assert that he insisted on contracting with Mr Bakhshi personally because he did not wish to contract with a company which may have no assets. He says that Mr Bakhshi wrote his name personally on the quotation and initialled it. However, there is no obviously discernable initialling apparent on the document. Even if one of the symbols on the page is initialling by Mr Bakhshi, I would not accept, for the reasons set out below, that the contract was with Mr Bakhshi personally.
With his affidavit filed on 22 May 2013, Mr Habul attaches two cheque butts showing payments of $300 and $2500 respectively which he has noted as payments to Abbas Bakhshi. Although I accept that he made payments to Mr Bakhshi’s name personally rather than to ABS Painting, this does not, of itself, satisfy me that the contract was with Mr Bakhshi personally.
Inconsistently with Mr Habul’s evidence that the contract was with Mr Bakhshi personally, documentation filed by Mr Habul with both the first and second initiating applications, suggests that the contract was with ABS Painting. A copy of a letter from Mr Habul to QCAT dated 17 August 2011 is attached to both applications initiating the first and second proceedings.[3] The letter[4] states, ‘We entered into a contract with ABS Painting Pty Ltd, I accepted his quote and give him order to the job….’. Also, both applications attach a copy of a letter from Habul Building Group (the nominated signatory is Omar Habul, although the filed copy is unsigned) to ABS Painting dated 7 June 2011 about rectification works required at his house.[5]
[3]The original letter was attached to the initiating application in BDL235-11: a copy was attached to the initiating application in BDL353-12.
[4]The letter forms part of Exhibit 1 in BDL353-12 and the original is attached to the original application in BDL235-11.
[5]The letter forms part of Exhibit 1 in BDL353-12 and another copy is attached to the original application in BDL235-11.
Mr Bahkshi’s Evidence
Mr Bakhshi told the Tribunal at the hearing that Mr Habul wrote on the quotation. He says there was not a written agreement between them. He says he provided a quote to Mr Habul, which was in printed form. As I understand it, at some point he wrote his name on a copy of the quote at Mr Habul’s request.
In essence, he says that he did not ask for cheques to be paid to him, but he explained that Mr Habul insisted on making payments by cheque in the name of Abbas Bakhshi because he (Mr Habul) refused to pay the GST included in the quote. Mr Bakhshi stated that ‘it’s like cheating.’
In his written statement,[6] Mr Bakhshi stated that Mr Habul asked him to write his name ‘as our agreement was GST exclusive and the payment had to be made to my name rather than ABS Painting.’[7] At first reading, it appears to be an acknowledgment that the contract was personally between Mr Habul and him. However, given his explanation at the hearing (and given that English is not his first language and my assessment having regard to his oral evidence that his English language skills are reasonably limited), I am satisfied that those words in his written statement were intended to convey what Mr Bakhshi says that Mr Habul said to him. It was not an acknowledgement that he personally agreed to paint Mr Habul’s house or to exclude GST.
[6] Exhibit 5.
[7] Exhibit 5, paragraph 2.
My conclusions
Mr Habul contends that the Tribunal made its order against the wrong person in the first proceeding. However, the nomination of the respondent in BDL235-11 and the correspondence to the Tribunal dated 17 August 2011 suggest that Mr Habul intended in that proceeding to proceed against ABS Painting as respondent. The letter of Habul Building Group to ABS Painting dated 7 June 2011 also tends to support this conclusion.
Further, Mr Habul made no contemporaneous attempt to have the Tribunal correct its alleged error. Instead, he sought, although unsuccessfully, to obtain payment in accordance with the order from ABS Painting. The second application names only Mr Bakhshi as respondent, as might be expected if the claim was made personally against him. However, it attaches and relies upon the same correspondence filed with the first application which suggests that the contract was with ABS Painting.
I do not accept that Mr Habul intended to claim against Mr Bakhshi in the first proceeding. It appears to me, based on Mr Habul’s statements to the Tribunal on 6 May 2013, that most likely the real reason for the second proceeding is that Mr Habul has not obtained payment from ABS Painting according to the order made in the first proceeding. The difficulty with Mr Habul’s claim is that he only ever had a possible claim against either Mr Bakhshi or ABS Painting, whichever of them he entered into a contract with.
Mr Bakhshi says that the quotation document that Mr Habul relies upon as showing that they personally contracted was altered by Mr Habul. In any event, it does not establish that the contract was between Mr Habul and Mr Bakhshi personally. It is no more than a quotation with some hand-written notes on it. Further, Mr Habuls’ claim that the contract was between him and Mr Bakhshi personally is inconsistent with the documentary evidence filed and relied upon by Mr Habul in both proceedings, namely Mr Habul’s letter dated 17 August 2011 to QCAT and the letter dated 6 June 2011 from Habul Building Group to ABS Painting. That correspondence is consistent with the evidence of Mr Bakhshi.
Having regard to the evidence discussed and the history of the first and second proceedings, I have formed the view that Mr Habul is an unreliable historian. I give greater weight to the evidence of Mr Bahkshi and to the documentary evidence referred to.
Therefore, I am not satisfied that the contract was between Mr Habul and Mr Bakhshi personally. Mr Habul can not succeed on his claim in this proceeding.
I make orders dismissing the application.
Observations
I make the observation that if I had been satisfied that the contract was between Mr Habul and Mr Bakhshi personally, it would have raised issues about whether any estoppel arose having regard to the order Mr Habul obtained by default in the first proceeding. However, given my view of the evidence, I do not need to consider that issue or any other issues regarding the application.