Halliday v The Phoenix Group (Qld) Pty Ltd - [2018] QCAT 65

CITATION:	Halliday v The Phoenix Group (QLD) Pty Ltd [2018] QCAT 65
PARTIES:	Craig Robert Halliday Rachael Heather Halliday (Applicants)
v
The Phoenix Group (QLD) Pty Ltd t/as Elite Wrought Iron Products (Respondent)
APPLICATION NUMBER:	BDL035-17
MATTER TYPE:	Building Matters
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
DELIVERED ON:	14 March 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The Phoenix Group (QLD) Pty Ltd t/as Elite Wrought Iron Products pay to Craig Robert Halliday and Rachael Heather Halliday the sum of $1,789.00; and 2. The Phoenix Group (QLD) Pty Ltd t/as Elite Wrought Iron Products pay to Craig Robert Halliday and Rachael Heather Halliday costs of $315.70.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where builder did not perform work – where home owner received nothing from work – where total failure of consideration – where home owner entitled to recover money paid plus consequential loss PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OTHER MATTERS – where claim for costs of letter of demand – where costs incurred prior to commencement of proceedings not recoverable – where costs of filing fee awarded Queensland Building and Construction Commission Act 1991 (Qld), s 77 A L Builders Pty Ltd v Fatseas (No. 2) [2014] QCATA 319 Faulks v New World Constructions Pty Ltd (No. 2) [2014] QCAT 329 Robinson v Harman [1848] EngR 135

APPEARANCES:

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

REASONS FOR DECISION

What is this Application about?

Craig and Rachael Halliday paid to The Phoenix Group (Qld) Pty Ltd t/as Elite Wrought Iron Products the sum of $1,489.18 to supply and install a gate.[1] The gate did not meet requirements and had defects. Phoenix agreed to “sort these issues out” and collected the gate.[2]
[1] Tax Invoice No. 6719 of Elite Wrought Iron Products dated 20 July 2015.
[2] Email Elite Wrought Iron to Craig Halliday dated 30 march 2016.
Phoenix never returned.
Phoenix did not file a Response to the Application or engage with the Tribunal process.
Accordingly, the Tribunal has been requested to assess damages.

Who is the correct Respondent?

The tax invoice describing the work and payment is in the name of “Elite Wrought Iron Products” and dated 20 July 2015. Mr and Mrs Halliday paid the sum of $1,489.18 the same day.[3] The contract was therefore entered into on 20 July 2015.
[3] Bendigo Bank receipt dated 20 July 2015.
The business name “Elite Wrought Iron Products” was registered to “The Phoenix Group (Qld) Pty Ltd” from 29 April 2014 to 15 January 2016. This period encompasses the time of contract.[4] “The Phoenix Group (Qld) Pty Ltd” is therefore the correct Respondent.
[4] ABN Search dated 10 May 2017.

Are Mr and Mrs Halliday entitled to a refund from Phoenix?

Mr…

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: [2018] QCAT 65
Decision Date: 14 March 2018

CaseChat Overview and Summary

In the matter of Halliday v The Phoenix Group (Qld) Pty Ltd, the plaintiffs, Craig Robert Halliday and Rachael Heather Halliday, sought compensation from the defendants, The Phoenix Group (Qld) Pty Ltd trading as Elite Wrought Iron Products, for a failure to perform contracted building works. The dispute was adjudicated by the Queensland Civil and Administrative Tribunal (QCAT), a body with jurisdiction to hear civil claims within a specified monetary limit.

The primary legal issue before the tribunal was the appropriate measure of damages for the failure of the defendants to perform the work as agreed. The plaintiffs argued that since they received nothing from the contracted work, the total failure of consideration entitled them to recover the money paid to the defendants, plus any consequential loss. The defendants contested the extent of the damages, arguing that the plaintiffs were not entitled to recover more than the amount paid under the contract.

The tribunal found that the defendants had indeed failed to perform the contracted work, resulting in a total failure of consideration. Consequently, the plaintiffs were entitled to recover the money paid to the defendants as well as any consequential loss. The tribunal awarded the plaintiffs the sum of $1,789.00, representing the amount paid to the defendants, plus an additional $315.70 in costs. The tribunal noted that the costs of the letter of demand and other pre-litigation costs were not recoverable, but that the costs of the filing fee were allowable. This decision reinforces the principle that in cases of total failure of consideration, the measure of damages includes not only the price paid but also any consequential loss.

The tribunal's orders were that The Phoenix Group (Qld) Pty Ltd pay the Hallidays $1,789.00 for the money paid under the contract and an additional $315.70 in costs. This decision underscores the importance of contractual performance and the remedies available when a party fails to meet their obligations.

Orders

Orders of the court

1. The Phoenix Group (QLD) Pty Ltd t/as Elite Wrought Iron Products pay to Craig Robert Halliday and Rachael Heather Halliday the sum of $1,789.00; and

2. The Phoenix Group (QLD) Pty Ltd t/as Elite Wrought Iron Products pay to Craig Robert Halliday and Rachael Heather Halliday costs of $315.70.

Background

Background to the litigation

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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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