Harrison v Gateway Construction Group Pty Ltd - [2024] QCAT 357

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Harrison v Gateway Construction Group Pty Ltd [2024] QCAT 357

PARTIES:

ROSS HARRISON

(applicant)

v

GATEWAY CONSTRUCTION GROUP PTY LTD

(respondent)

APPLICATION NO/S:

BDL132-21 & MCD510-22

MATTER TYPE:

Building matters

DELIVERED ON:

20 May 2024

HEARING DATE:

20 September 2023

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

Application is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMEDIES FOR BREACH OF CONTRACT – dispute between two building contractors – where there was no formal contract in writing signed by the parties – whether there is evidence of a contractual relationship – whether employee or contractor

Queensland Building and Construction Commission Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Erin Shay v Christopher Shannon [2021] FWC 2815

APPEARANCES REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Background

The applicant Mr Ross Harrison lodged an application for a domestic building dispute on 10 June 2021 seeking payment of money owed in the amount of $30,867.50.
The amount is alleged to be payment for the applicant’s work on two separate building jobs, at two separate building sites. One a demolition of a house at Mukie Street in Jindalee and the second labour and truck hire at a building site at Sumner Road, Sumner.
Mr Harrison asserts that he supplied a machine and a truck for both jobs and spent weeks on site but has not been paid any money for this work.
The respondent, Gateway Construction, represented by the Director Mr Jean Claude Fakhry, asserts that the application should be dismissed as Mr Harrison was an employee of a different building company being either Plumbing Dudes Pty Ltd (‘Plumbing Dudes’) and/or Harrison Civil Pty Ltd (‘Harrison Civil’) and the applicant should obtain any money owed to him from those companies. The respondent also states that the matter went through a QBCC process prior to commencing at the Tribunal and QBCC did not find that any money was owed to Mr Harrison by QBCC.
On 20 May 2022 the applicant filed a second application for a minor civil dispute - minor debt recovery in the amount of $14,860 and costs of the $358 filing fee. This is file MCD510-22. This appears to be the amount alleged to be owed for the work at Mukie Street, Jindalee, involving the demolition of a house.
This application appears to be as a result of a misunderstanding by the applicant in relation to directions made on 3 May 2022 that state, amongst other things that:
(a)These matters involve the same parties and two separate disputes in respect of two separate contracts and two different project sites.
(b)The file BDL132-21 should be separated into two separate files with the dispute relating to the commercial site situated at Sumner Park being contained in one file and the dispute relating to the demolition of a dwelling house situated at Jindalee contained in another file.
(c)The applicant will pay another filing fee of $358.00 in respect of one application to the Tribunal by 4pm 20 May 2022.
The matter proceeded to hearing on 20 September 2023. The building dispute BDL132-21 and minor civil dispute MCD510-22 were consolidated and joined into one building dispute to be heard together in the one hearing. While the initial application was filed as a domestic building dispute, it was acknowledged at hearing that this is in fact a minor commercial building dispute.
Oral evidence was heard from both the applicant and the respondent. Neither Party brought any witnesses to the hearing. The applicant was warned that limited weight may be placed on the statements of witnesses not made available for cross examination. Notwithstanding this warning, the applicant indicated he wished to proceed in the absence of the witnesses and did not seek to request an adjournment to allow any witnesses to be available.
Statutory framework – building disputes.
The relevant enabling Act is the Queensland Building and Construction Commission Act1991 (Qld) (‘QBCC Act’).
The Tribunal has jurisdiction to hear and decide building disputes;[1] however, section 77(2) QBCC Act qualifies QCAT’s jurisdiction by first requiring an applicant to comply ‘with a process established by the commission to attempt to resolve the dispute’.
[1]Queensland Civil and Administrative Tribunal Act2009 (Qld) (‘QCAT Act’), s 77.
I am satisfied that these obligations have been complied with, based on the email from QBCC dated 18 February 2021 attached to the application.
For the purpose of the Tribunal, a building dispute includes a domestic building dispute, which is defined to include a dispute between a building owner and a building contractor, or a claim or dispute arising between two or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work;[2] and a minor commercial building dispute; or a major commercial building dispute if the parties to the dispute consent to the dispute being heard by the Tribunal under section 79 QCAT Act.
[2]Ibid, Sch 2.
The terms “building owner” and “building contractor” are also defined in the QBCC Act.[3] A building contractor means a person who carries on a business that consists of or includes carrying out building work and includes a subcontractor who carries out building work for a building contractor. Accordingly, I am satisfied that the applicant and the respondent are both building contractors.
[3]QBCCAct, Sch 1B, s 1.
Tribunal work includes amongst other things:
(a)the erection or construction of a building.
(b)the renovation, alteration, extension, improvement, or repair of a building.
(c)the provision of electrical work, water supply, sewerage or drainage or other like services for a building.
(d)the demolition, removal, or relocation of a building.
The work conducted at these two building sites fits within the definition of Tribunal work and both disputes are minor commercial building disputes. Noting the value sought on each dispute (and combined) is under $50,000, there is jurisdiction for the Tribunal to hear the matter.
Pursuant to s 77(3) of the QBCC Act, in deciding a building dispute the Tribunal may award damages, interest, restitution, rectification or completion of defective or incomplete work, and cost.
Material filed in proceedings.
Limited material has been filed by the applicant in support of his claims.
Directions were made on 3 May 2022 that the applicant file full details of each of the two claims and a statement of evidence by 20 May 2022. This direction was not complied with.
Further directions were made on 11 August 2022 that by 8 September 2022 the applicant must file a statement of evidence from himself which must be page numbered, dated and signed, and statements of each witness to give evidence for the applicant at the hearing and any document referred to in a statement must be identified, explained and attached to the appropriate witness statement.
In line with the filing direction on 8 September 2022 the applicant provided to the registry two undated statements written by himself. The first was a half-page document in relation to the building work conducted at Summer Road. The second was 7 lines in relation to the building work at Mukie Street, Jindalee. There was a further undated document from Mr Darren Harrison (the applicant’s father) which contained two lines which stated that Mr Darren Harrison was on the site for the demolition of the house at Jindalee and the applicant did do the job there. There are also two emails from Julie Harrison (email address [email protected]) entitled “Ross’s hours” sent to the respondent on 8 March 2020 and 5 May 2020; a handwritten invoice for an unrelated contractor; invoices from service stations and green waste disposal and one invoice for towing of an excavator.
On 13 September 2022 a further affidavit under the hand of Daniel Devitt, Solicitor at Irish Bentley Lawyers (‘IBL’) was filed on behalf of the applicant. The affidavit contained 8 marked exhibits. The affidavit speaks to an agreement between Gateway Construction, Julie Harrison on behalf of the Harrison Civil, Darren Harrison on behalf of Plumbing Dudes, Ross Harrison and Irish Bentley Lawyers.
On 1 December 2022 further directions were made that by 4 March 2023, the respondent was to file a statement of evidence from themselves which must be page numbered, dated and signed, and statements of each witness to give evidence for the applicant at the hearing; and any document referred to in a statement must be identified, explained and attached to the appropriate witness statement. The applicant was to file any evidence in reply by 18 March 2023.
In line with the filing direction on 4 March 2023 the respondent provided to the registry an undated statement with 9 numbered paragraphs which denied that Gateway Construction had ever entered into an agreement with Ross Harrison. Also attached were documents in relation to the insolvency of Harrison Civil and evidence Plumbing Dudes had their building licence cancelled. The applicant did not file any material in response.
The applicant’s claim against the respondent appears to be one of contract, in that he had an agreement with the respondent to perform building work, and he performed the work and was not compensated, which was a breach of the agreement. In order to determine the applicant’s claim, it needs to be determined:
(a)What is the contract or agreement,
(b)Was there a breach of the agreement; and
(c)What is the loss and how is it attributable to/caused by the breach.

What was the agreement?

The applicant relies upon an agreement attached to the affidavit of Daniel Devitt as the basis of his claim in contract against the respondent.
There are various versions of the agreement annexed to the affidavit of Daniel Devitt affirmed on 30 August 2022 at exhibits DD01 to DD03. Each version has the same terms but is in varying states of execution. There is no fully executed agreement provided to the Tribunal. Exhibit DD03 is the most complete of the three documents but is missing; the date of the agreement completed on page 2; Mr Fakhry’s signature (only his name is recorded) and a witness for the signatory from IBL (there is a signature purported to be for Zeke Bentley but there is no witness of the signature).
In the affidavit of Daniel Devitt at paragraph 8 there is an explanation provided for the unsigned contract that states when Mr Devitt called Mr Fakhry to discuss the execution of the agreement, Mr Fakhry told him that he would re-send the agreement to him but that he only wrote his name on the agreement as the principal of IBL, Mr Zeke Bentley knew Mr Fakhry and it would not be an issue. There are no emails or case notes attached to the affidavit to support this statement and this is disputed by the respondent.
Despite a direction that witnesses must attend the hearing in person for cross examination, Mr Devitt was not available on the date of the hearing and as such limited weight can be placed on his affidavit, where it conflicts with other evidence.
At the hearing Mr Fakhry gave evidence that he wrote his name on the agreement as he had been asked to sign it and then decided he needed to think about it. He stated the agreement is not signed as he decided he did not agree with the terms of the agreement as it was not a good deal for Gateway Construction and did not want to be bound to it.
Mr Fakhry’s explanation of the name but no signature being in the agreement is a more believable explanation than the one given by Mr Devitt. The Tribunal finds it hard to believe that a competent solicitor would consider it sufficient for a company director to write their name only on an agreement and not sign it because they were friends with the principal, particularly for a contract in relation to a $15,000 debt owed to the solicitor’s firm.
Accordingly, the Tribunal finds that there is no properly executed agreement in place and no evidence that Gateway Constructions intended to be bound by this agreement. While there is some evidence there was some informal arrangement or agreement for Gateway to pay some of the invoices to IBL, by virtue of the respondent paying funds to IBL on 7 August 2020 for the debt owed by Harrison Civil, the exact terms and nature of that agreement are not clear to the Tribunal.
Regardless, even if the document attached to Mr Devitt’s affidavit were a valid agreement, it does not create any obligation on Gateway Constructions to pay Mr Harrison any particular amount of money.
The agreement details a debt owed by Harrison Entities (consisting of the applicant Ross Harrison and his parents on behalf of their respective companies Harrison Civil and Plumbing Dudes) to IBL of $15,000 and that IBL had registered a security interested on the PPSR against a truck owed by Harrison Entities which they need to complete some construction works with Gateway Construction. The purpose of the agreement appears to be to allow Harrison Entities to retain possession of their truck in order to be able to complete work, to enable them to pay the debt owed. The agreement states that Harrison Entities authorises and instructs Gateway to pay any of its invoices to IBL in satisfaction of the debt, but there is no obligation on Gateway Construction to do so and it does not create any obligation on Gateway Construction to have to engage any of the Harrison Entities for building works. The agreement is clear that if Harrison Entities fail to do sufficient work to justify Gateway paying IBL in accordance with the payment plan, IBL will be entitled to commence proceedings to recover the balance from the Harrison Entities and to take steps to recover the truck and auction it off.
Had there been a valid agreement, it may have resulted in joinder of IBL as an applicant or Mr Harrison not being entitled to claim some of the funds he states he is owed; however, the Tribunal has found this is not a valid agreement and as such it does not impact on the jurisdictional issues.
As there is no written agreement in this matter, the Tribunal needs to look to the evidence of an agreement in relation to each building work.

Building work at Sumner Road

The applicant’s claim in relation to the building work at Sumner Road, Summer is that he used his excavator truck and did labour for Gateway Construction at the Sumner Road site which involved digging out a basement for a shopping centre, in order to pay out a debt owed to IBL, and that neither he nor IBL have been paid for his work.
In support of this claim the applicant provided an invoice dated 27 July 2020 for the amount of $16,007.50 for labour and truck hire at the Sumner Road job, with a spreadsheet containing dates, times and hours and amounts. The invoice notes at the bottom $15,000 to be paid to the solicitors and $1,077.50 to be paid to Ross Harrison. There are also two emails sent from Julie Harrison (the applicant’s mother and owner of Harrison Civil) sent to the Respondent, Mr Fakhry, from an email address of [email protected] on 8 March 2022 and 5 May 20222. The times and dates in these emails account for the first 18 entries of alleged labour and 6 entries of machine hire. There is no other independent evidence to account for the remaining 28 entries of the spreadsheet in relation to alleged labour worked or the 8 occasions of truck hire.
There is also evidence in the affidavit from Daniel Devitt that money has been paid to IBL in August 2020.
At hearing, the applicant said he thought he was an employee of Gateway Construction. He confirmed he had no building licence of own right and there was no employment agreement in writing as he though the contract with IBL was the agreement.
Under cross examination the applicant confirmed that he did not provide the respondent with a tax file number or ABN, there were no timesheets or regular invoices, and he did not receive any regular payment from the respondent but said he thought the lawyers were to be paid.
The respondent denies that the applicant ever worked for Gateway Construction and gave evidence that any work the applicant did on the building sites was under the companies Plumbing Dudes and/or Harrison Civil.
There is a lack of evidence to support that the applicant was employed by the respondent. There was no agreement, no regular payment, and the applicant did not provide bank account details or a tax file number to the respondent company. While it is accepted that the mere act of invoicing for work is not evidence in and of itself that a person is a contractor as opposed to an employee,[4] invoicing is more commonly used for contractors as opposed to employees. The applicant also did not work in any set pattern as directed by the respondent, he used his own equipment, and the invoice makes no allowance for tax or superannuation, indicating that the applicant was responsible for their own tax and superannuation.
[4]Erin Shay v Christopher Shannon [2021] FWC 2815 (21 May 2021).
Accordingly, the evidence would support that if there was any formal working relationship between the applicant and a respondent, it was more in line with one of a contractor or sub-contractor, as opposed to an employee.
There is however insufficient evidence to demonstrate that there was any contract or agreement between the applicant or respondent (either written or oral) for performance of building work. The respondent maintains any work that the applicant completed at the Sumner Road site was with another building contractor. The applicant has not provided any contact to evidence the agreement and stated he believed the IBL agreement created the working relationship, which even if it was a properly executed document, creates no such obligation on the respondent.
The emails from Plumbing Dudes of hours allegedly worked do not in and of themselves evidence any agreement between the applicant and the respondent, as they could equally be evidence of an arrangement between Plumbing Dude and the respondent, demonstrating when their contractor worked. The document also does not show any of the emails in the conversation sent from the respondent. The only evidence of the respondent’s emails in response was provided to the Tribunal by the respondent in the response. Upon receiving an email from Plumbing Dudes on 13 August 2020 attaching two invoices, presumed to be the invoices relating to this matter, the respondent replied asking for evidence of all signed machine docket and truck dockets for any work done for Gateway and stated that Gateway has never engaged the applicant to do any sewer cap. There is no evidence that these documents were provided.
The applicant presented as an unreliable witness. He was vague and uncertain, could not clarify any dates or terms of the alleged agreement, and limited weight could be put on his evidence. In light of the respondent’s denial of any agreement or contract with the applicant, and the applicant being unable to provide any signed agreement or any credible evidence of an oral agreement, the Tribunal is unable to find there was any agreement between the applicant and the respondent for the performance of building work at the Sumner Road site.
As it cannot be established that there was a contract between the applicant and the respondent, it follows that it cannot be established that there was any breach or loss and as such the applicant’s claim against the respondent in relation to alleged breach of contract for work at Sumner Road must fail.

Building work at Mukie Street, Jindalee

The applicant’s claim in relation to the building work at Mukie Street, Jindalee is that he entered into an agreement with the respondent company to demolish a house at Mukie Street, Jindalee. He supplied the truck and labour. The respondent paid the tipping fees and one of the other truck drivers but took the full payment from the homeowner and did not pass on any money to the applicant.

There is also an allegation in the applicant’s statement that Mr Fakhry, the director of the respondent company, took cash for a shower screen which the applicant sold online. This did not form part of the application and there is no evidence to support this claim. Accordingly, any claim in relation to the shower screen must fail.
In support of this claim in relation to the Mukie Street work, the applicant provided an invoice in the amount of $14,860 confirming it was the cost of demolishing the house, machine truck hire and sewer cap off; a short statement from himself; a two line statement from his father Darren Harrison; some diesel and green waste receipts; a hand written invoice from another contractor, James Bryant; and a towing invoice dated 10 June 2020 confirming the 25 tonne excavator was towed from 24 Mukie Street, Jindalee on that day.
The statements from the applicant’s father, Darren Harrison, states that he was on the site for the demolition of the house at Jindalee and Ross Harrison did the job there. The statement is unsigned, and Mr Darren Harrison was not made available for cross examination at hearing.
The statement has little evidential value as it does not confirm the date or address of the demolition job in Jindalee, and all it says is that the applicant worked on the demolition of the house but does not confirm who he worked for.
Despite the applicant’s statement alleging that he entered into an agreement with Gateway Construction to demolish a house and supplied a truck, an excavator and his labour, no contract between the applicant and respondent for the work at Mukie Street was ever provided. No contract between the building owner and either the applicant or the respondent was ever provided to demonstrate the work conducted and the agreement in place as to who was to do the building work and what any payment arrangements were. The only evidence of the work at Mukie Street was a tender from Plumbing Dudes for work at 24 Mukine Street, Jindalee, provided in the response material. It is noted this is a different spelling to all the information from the applicant as to the street name, but it is taken to be the same address.
Clarification was sought in relation to the agreement at the hearing. The applicant stated that he quoted for the job $22-$24K although could not recall the exact figure and stated the quote was in writing but had not attached any quote to his material and could not provide it at hearing. When asked about the tender attached to the Response material, he confirmed that the tender document was the quote he was referring to, despite earlier stating in evidence that neither Plumbing Dudes nor Harrison Civil had any involvement in this work.
In terms of the agreement between the applicant and the respondent company, the applicant states it was an oral agreement that he would go halves with the respondent. This was clarified to mean half of the profits. The applicant was very vague in relation to the contract: he could not provide any clarity as to the terms of contract, for instance who did what work, who paid what costs, what the total costs were and therefore what any profits were.
The applicant stated that the owner paid the first payment of $12,000 to the respondent and when the owner offered to make the final payment of $10,000 to the applicant he declined and said to pay the respondent and they would pass the money on, but he never did. This lacks plausibility, as if there was an oral agreement to split the profit equally and just over half had already been paid to the other party, it does not make sense for the second party to decline the payment of the remaining half of the payment. It also does not seem plausible that the applicant would have great faith in the respondent to pay him what was required, in line with the applicant’s other evidence that he had already worked on an earlier building job for the respondent for several months and not been paid for that work.
The respondent’s evidence was that Gateway Construction never completed any demolition work at this address nor was there any agreement with the applicant to complete this work. Plumbing Dudes did the building job for the demolition of the house at Mukie/Mukine Street, but they had asked to use the respondent’s accounts, due to Plumbing Dudes having no building licence at the time. The respondent agreed to use their accounts to pay the invoices for Plumbing Dudes and received payment from the owner for the costs that Gateway Construction covered for Plumbing Dudes and any remaining money owed/outstanding was a matter for the owner and Plumbing Dudes.
While it is unclear as to what the consideration/benefit was for the respondent to engage in this agreement with Plumbing Dudes, there is some evidence to support this version, in that the respondent provided a licence search for Plumbing Dudes completed in February 2023 which confirmed that from 1 April 2000 to 24 June 2000 the licence was suspended and from 24 June 2020 to current period the licence was cancelled. Therefore, Plumbing Dudes had a suspended licence at the time the tender was made for this building job.
It is not necessary for the Tribunal to make a clear finding whether the respondent’s version is the true arrangement for this building work, as there is no onus on the respondent. This is the applicant’s application, and it is his responsibility to provide the evidence to support his application.
In the absence of any agreement being provided to the Tribunal, either to evidence the building work that occurred or to evidence the agreement between the applicant and the respondent, and the applicant being unable to provide any clarity as to the terms of any oral agreement, there is insufficient evidence to support a finding that there was any contractual relationship between the parties or any obligation on the respondent to pay the applicant any money. Evidence of any loss was also not substantiated, as the applicant was unable to confirm what the total costs on the building works were, who paid what costs and therefore what, if any profits there were.
Accordingly, the application must fail as the applicant has not proven there was any contractual relationship between the applicant and the respondent or any obligation for the respondent to pay him any money. Accordingly, the application is dismissed.

Orders

The application is dismissed.