Ho v Turcinovic

[2013] QCAT 248

CITATION: Ho & Anor v Turcinovic & Anor [2013] QCAT 248

PARTIES:	Thi Dieu Hien Ho Tung Huu Le (Applicants)
V
Mr Hajrudin Turcinovic HNT Builders Pty Ltd (Respondents)

APPLICATION NUMBER: BDL028-13

MATTER TYPE: Building matters

HEARING DATE: 17 May 2013

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 29 May 2013

DELIVERED AT: Brisbane

ORDERS MADE: The respondents pay to the applicants the sum of $20,000.00 by 30 June 2013.

CATCHWORDS:

CONTRACT – where applicants dealing exclusively with Harry Turcinovic to carry out building work – where contract signed by the applicants has the named builder as HNT Builders – where HNT Builders is a proprietary limited company – where licensee is the Nihad Turcinovic, the son of Harry Turcinovic – where applicants never intended to contract with HNT Builders Pty Ltd – whether there was intention to create legal relations.

Domestic Building Contracts Act 2000 (Qld) s 72

Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWR 309

APPEARANCES and REPRESENTATION (if any):

APPLICANTS: Self - represented

RESPONDENTS: Self - represented

REASONS FOR DECISION

1. In mid 2012 the applicants were the owners of land at Plimsoll Street in Greenslopes. They wanted to carry out building work on the land which involved the renovation of the existing house and building two units.[1] Mr Harry Turcinovic was doing building work in the area with, it now seems, HNT Builders Pty Ltd a building company of which his son Nihad Turcinovic is both the director and licencee.

   [1]        Exhibit 2 – Schedule 1, Item 4.

2. After some negotations, the applicants signed a contract with “HNT Builders” believing they were cotracting with Mr Harry Trunicovic who held a current builders licence, number 41047. They paid a cash deposit to Mr Turconivic of $20,000. Upon realising that the builder was going to be HNT Builders Pty Ltd and not Mr Turcinovic, whose licence has been cancelled, they immediately wrote to the respondents demanding a refund of the deposit paid and bringing to an end any contracutal relationship, if one existed. As an alternative, if it is found that there is a contract with HNT Builders Pty Ltd, then the applications say they have exercised their rights under s 72 of the Domestic Building Contracs Act 2000 (Qld) to withdraw from the contract.

3. The deposit was not repaid and therefore an application was made to the Tribunal for a refund of the deposit. The issue for determination is whether there is a binding contract with HNT Builders Pty Ltd and, if there is, whether the applicants have lawfully withdrawn from the contract.

4. Initital contact between the applicants and Harry Trucinovic occurred when they had a meeting to discuss the project in mid 2012. At the meeting Mr Le says he was handed an advertising “flyer” which describes the builder as HNT Civil Construction Maintenance and represents the builder as “Master Builders Association Award Winning Builder 2010”. The licence number referred to on the flyer is 410147, which is the licence number of Harry Trucinovic which had in fact been cancelled. On the back of the flyer he wrote his details, that he was from “HNT Civil” and telephone numbers for himself and Nihad. Although, there is a contest as to whether Mr Trucinovic did write on the back of the flyer and hand it over at the meeting I am prepared to accept the evidence of Mr Le on this point. The writing is consistent with that on the contract written out by Mr Trucinovic and signed by him. The information on the back could only have been within the knowledge of Mr Trucinovic, particularly the reference to “Stephen”. This document represents that the builder is Mr Harry Trunicovic carrying on the business described as HNT Civil Construction Maintenance.

5. Eventually, after a number of meetings and exchange of emails between the applicants and Mr Harry Turcinovic a building contract was prepared and signed by the applicants on 30 December 2012. The builder is described as “HNT Builders” in Item 3 of Schedule 1 with an “ACN 156455615”. Therefore, the respondents contend the applicants contracted with HNT Builders Pty Ltd and it is a valid and enforceable contract. The contract was also signed by “H Turcinovic” as the builder.

6. The applicants contend that until just after the time when the contract was signed, they believed, and Mr Turcinovic represented, that he was going to be the builder, he held a current Building Services Authority licence and they were dealing with his business, HNT Civil Construction Maintenance.

7. After signing the contract and paying the deposit of $20,000.00 to Mr Turcinovic, Mr Le carried out a search of the Building Services Authority website and found that Mr Turcinovic was not licensed. He then searched HNT Builders and came up with the name of HNT Builders Pty Ltd which did have a license and its nominee for the purposes of the Act was Nihad Turcinovic, Mr Turcinovic’s son.

8. As I have already commented, it is not contested that all negotiations were between the applicants and Mr Turcinovic. In particular, all email correspondence that emanated from Harry Turcinovic contained the logo of HNT Civil Construction Maintenance and was signed by him. There is no reference in any of the material filed, nor evidence from Mr Turcinovic, that he informed the applicants that they would be dealing with HNT Builders Pty Ltd or for that matter his son, Nihard as the nominee licensed builder.

9. Even the specification for the works, and the schedule of finishes was in the name of HNT Building Construction Maintenance & Associates which again reinforced the view on the part of the applicants that they were dealing with a business name and not a proprietry limited company.

10. Mr Turcinovic places some reliance on Mr Le meeting Nihad Turcinovic at one of the meetings at Harry Trucinvovic’s home. He also places reliance on Mr Le’s visit to a building site where the sign on the building site, as required by the Queensland Building Services Authority Act 1991 (Qld) and Queensland Building Services Authority Regulations 2003 (Qld), identified HNT Builders Pty Ltd as the registered builder. Mr Le does not recall the meeting or seeing the sign, he says it may well have been there but it did not register with him that this was the builder he would be contracting with. Again his explanation about these matters is resonable having regard to the extent of his deallings with Harry Trucinovic.

11. In their discussions about the contract, it is not contested that Mr Turcinovic did not tell the applicants that he had spent money on preparing for the job, that is with a certifier or an engineer and purchasing steel.

12. After the contract was signed, the respondents did not give a copy of the contract to the applicants. It wasn’t until two days later when Mr Le asked for a copy did he and Ms Ho receive a carbon copy of schedule 1 to the contract which had the detail about the builder in it. Even when it was received at that time it was not signed by the builder save for the signature of Harry Trunicovic. Further there is no evidence that he had any authority to bind the company, in fact his evidence was that the contract was supposed to be signed by Nihad Turcinovic.

13. Mr Le gave evidence that he sought legal advice immediately after he realized that the contract was purortedly with HNT Builders Pty Ltd but given the Christmas/New Year break, he could not contact a solicitor until 7 January 2013 when normal business resumed. I accept this to be the case. He instructed a solicitor to write to the respondents on 9 January 2013 which set out the applicants position in that they believed they were dealing with Mr Harry Turcinovic as the licensed builder as he made representations to them both orally and in the form of documents referred to above, that he was the contracting builder. It was contended that on the basis of this misrepresentation, no contract was entered into with HNT Builders Pty Ltd, and a refund of the deposit was demanded.

14. In response to the letter, the respondents contended that the contract was binding on the parties and furthermore, although the applicants had a right to withdraw in the cooling off period provided by s 72 of the Domestic Building Contracts Act, they have not chosen to do so and the contract remained on foot.

15. It was also contended that of the monies paid, expenses had been incurred in relation to certification costs, engagement of house removalists, costs associated with the estimation of variations and payment for steel supplies. In essence the respondents are saying the contract was partly performed by them or HNT Builders Pty Ltd.

16. That letter drew a further response from the solicitors for the applicant in which they again contended that no contract had been entered into, and if it had, the respondents had not complied with their obligations under s 72 of the Domestic Building Contracts Act and provided to the applicants a copy of the signed contract, and a copy of the appropriate contract information statement for the contract.[2] This contention is correct and was conceded by the respondents at the hearing.

    [2]        Domestic Building Contracts Act, s 72(5)(a).

17. The evidence that has been produced by the applicants and I might say the lack of evidence from the respondents leave me in no doubt that the applicants believed that they were dealing with Mr Harry Turcinovic as the builder for the purposes entering into a contract to carry out the building work. That representation was made on the basis that he was the legal entity behind HNT Civil Building Construction Maintenance & Associates and the reference to HNT Builders on the contract was a reference to this trading name.

18. I accept the evidence of the applicants that it was only upon a search of the Building Services Authority database did they realize that Mr Turcinovic was not licensed. They had not had any meaningful meeting Nihad Turcinovic about the project, knew nothing about HNT Builders Pty Ltd and did not know that Nihad Turcinovic was a licensee and held a builders license until they conducted the search after the contract was signed. They then took immediate steps to raise these issues with the respondents which is consistent with their belief they were dealing with Harry Turcinovic.

19. I am satisfied that the representation made by Mr Turcinovic was a misrepresentation which induced the applicants to sign the contract. There was nothing said or done at the signing of the contract which informed the applicants that they were contracting with HNT Builders Pty Ltd and although the ACN number is displayed, it is not something which would have alerted the applicants to fact they were dealing with that entity. This is especially so when all of the previous documents, authored by Harry Trucinovic were from HNT Building Construction Maintenance.

20. For the purposes of determining whether the applicants intended to create legal realations with the HNT Builders Pty Ltd, it is permissible to have regard to the negotiations and representations made by Mr Turncinvoic.[3] The effect of this leads me to the conclusion that there was no meeting of the minds, the applicants never intended to contract with HNT Builders Pty Ltd and therefore no binding contact exists between them. The deposit paid must be refunded to them.

    [3]        Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWR 309.

21. I would also find, as the alternative, that the applicants lawfully withdrew from the from the contract as they were entitled to do under s 72(5) of the Domestic Building Contracts Act. On 7 February 2013 the applicants solicitors wrote to HNT Builders Pty Ltd pointing out that although the applicants were of the view they were contracting with Harry Turcinovic, if it was found the contract was with HNT Builders Pty Ltd then the builder has failed to comply with s 72. The builder had not signed the contract and given a complete copy to the applicants and had not given them the contract information required by the section. The effect of the withdrawal is that the deposit money must be repaid as the applicants have exercised their rights under s 72 and withdrawn from the contract.

22. Although the applicants have included an invoice from their solicitor for the work done subsequent to 7 January 2013, no claim is made for costs in the application. To avoid confusion I would not order costs in the case in any event. Firstly, because s 100 of the Queensland Civil and Administrative Tribunal Act requires each party to pay their on costs; and secondly, I am not satisfied that the interest of justice require a costs order be made in this case.

23. Therefore as the respondents have no right to retain the $20,000.00 there will be an order that it be reapaid to the applicants by 30 June 2013.