HNT Civil Construction v Mahamoud - [2013] QCAT 36

CITATION:

HNT Civil Construction v Mahamoud [2013] QCAT 36

PARTIES:	HNT Civil Construction (Applicant)
v
Osman Mahamoud (Respondent)

APPLICATION NUMBER:

MCDO167-11

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

15 October 2012

HEARD AT:

Holland Park

DECISION OF:

Kate Buxton, Adjudicator

DELIVERED ON:

11 January 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The applicants claim to recover $18,000.00 in unpaid variations is dismissed.

2. The respondent’s counter application to recover $7,000.00 as an overpayment for works not yet undertaken is dismissed.

3. The applicant pay to the respondent the sum of $1,952.55 in claim for defects by 28 February 2013.

CATCHWORDS:

MINOR CIVIL DIPUTE – Building Contract – unwritten variations – whether payment properly characterised by homeowner as for variations or incomplete work – adequacy of evidence

Domestic Building Contracts Act 2000, ss 79, 84

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

In person

RESPONDENT:

In person

REASONS FOR DECISION

This application was filed as a minor civil debt and heard in the minor civil dispute jurisdiction at Holland Park. The applicant claims $18,000.00 for unpaid variations following a contract entered into between the parties for house extension and renovations. The contract was entered into on 8 January 2010 in the sum of $30,000.00. As at the date of the hearing the respondent had paid a total of $37,000.00 (including $7,000.00 over and above the amount stated in the written contract) and the applicant claimed a further $18,000.00 in unpaid variations (meaning the applicant claimed that $25,000.00 in variations were payable in total).
The applicant sent a letter of demand on 3 March 2011 and filed this application on 5 October 2011. Following a number of preliminary hearings during 2012 the matter came on for final determination on 15 October 2012. The parties then complied with further directions during October and the decision was reserved.
In his response Mr Mahamoud stated that he owed $8,000.00 in agreed unpaid variations. However, the respondent states that he paid the sum $7,000.00 to the applicant not by way of payment for variations but by way of a deposit for further works which the applicant agreed to undertake but which he has not yet commenced.
The respondent also advanced a counter-application to recover monies for various incomplete or defective works.

The evidence

A lump sum contract was entered into between the parties on 8 January 2010 for the sum of $30,000.00. No written variations were entered into for any further work.
At the hearing Mr Turcinovic, director of the applicant, and licensee for undertaking of the building works, gave oral evidence above the extensive nature of the variations. He did all this from memory and, when prompted by the Tribunal, by reference to a house plan that he was able to produce. When initially asked by the Tribunal how the money claim was made up he replied ‘I don’t know. It was a long time ago’. Allowing Mr Turcinovic as much latitude as possible, given he was representing himself, he then…

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: [2013] QCAT 36
Decision Date: 11 January 2013

CaseChat Overview and Summary

The applicants, HNT Civil Construction, filed an application against the respondent, Mahamoud, in the Queensland Civil and Administrative Tribunal, asserting that the respondent owed them $18,000 in unpaid variations. The respondent denied this and filed a counter application claiming an overpayment of $7,000 for work that had not yet been performed. The dispute arose from an agreement between the parties for the construction of a house, with the respondent as the homeowner and HNT as the contractor. The primary issue before the tribunal was whether the payments made by the respondent to HNT were properly characterised as payments for variations or incomplete work. Additionally, the tribunal needed to determine the adequacy of the evidence presented by both parties to support their respective claims.

The tribunal considered the nature of the agreement between the parties, which was largely unwritten, and the payments made by the respondent to HNT. The tribunal noted that the respondent had made payments to HNT, but it was unclear whether these payments were for variations or incomplete work. The tribunal found that the evidence presented by HNT was insufficient to support their claim for unpaid variations, as they had not provided adequate records or documentation to substantiate their claim. Similarly, the tribunal found that the respondent’s evidence was insufficient to support their claim for an overpayment, as they had not provided any evidence to demonstrate that work had not yet been performed. The tribunal also considered the claim by the respondent for defects, finding that the evidence supported a payment of $1,952.55 to the respondent.

In summary, the tribunal dismissed both the applicant's claim for unpaid variations and the respondent's counter application for an overpayment. The tribunal found that neither party had provided sufficient evidence to support their respective claims. However, the tribunal did find that the respondent was entitled to a payment of $1,952.55 for defects, which was to be paid by the applicant by 28 February 2013. The tribunal’s decision highlights the importance of proper record-keeping and documentation in construction disputes, particularly when it comes to variations and incomplete work.

Orders

Orders of the court

1. The applicants claim to recover $18,000.00 in unpaid variations is dismissed.

2. The respondent’s counter application to recover $7,000.00 as an overpayment for works not yet undertaken is dismissed.

3. The applicant pay to the respondent the sum of $1,952.55 in claim for defects by 28 February 2013.

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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