Infinite Roofing Pty Ltd v Mittag - [2022] QCAT 436

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Infinite Roofing Pty Ltd v Mittag [2022] QCAT 436

PARTIES:

INFINITE ROOFING PTY LTD

(applicant)

v

HEATHER MITTAG

(respondent)

APPLICATION NO/S:

BDL073-22

MATTER TYPE:

Building matters

DELIVERED ON:

30 November 2022

HEARING DATE:

24 November 2022

HEARD AT:

Brisbane

DECISION OF:

Member George

ORDERS:

1. The application is dismissed.

2. The Applicant, Infinite Roofing Pty Ltd, is to rectify the works by removing the window hoods supplied and installed on 16 December 2021 at the respondent’s premises within 28 days.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –

Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B, s 1, s 4(1)(b), s 75(1)(b), s 77(1), s 77(2), s 77(3), Schedule 2

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104

APPEARANCES & REPRESENTATION:

Applicant:

Agent

Respondent:

Self Represented

REASONS FOR DECISION

Background

This is an application seeking the payment of money said to be owing for the supply and installation of aluminium window hoods at a residential house at Fairfield. The applicant is Infinite Roofing Pty Ltd (Infinite). The respondent is the owner of the house, Ms Heather Mittag.
It is not disputed that nine hoods were supplied and seven were installed at the house on 16 December 2021. Infinite claims the sum of $5,548.89.
Ms Mittag seeks orders that the application be dismissed and for the hoods to be removed from the house “and any damage during their removal be made good with immediate effect.”
Infinite is a building contractor and Ms Mittag is a building owner.[1] The work undertaken by Infinite was domestic building work, and this is a domestic building dispute.[2] Infinite has filed a letter from the QBCC dated 22 February 2022 stating to the effect that its dispute process is now at an end. Accordingly, I am satisfied that this application may be made.[3]
[1]Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B, s 1 (QBCC Act).
[2]QBCC Act, schedule 1B, s 4(1)(b) & schedule 2.
[3]QBCC Act, s 77(1) & s 77(2).
At the hearing of the application, Mr Austin Jonasen appeared for Infinite and Ms Mittag appeared on her own behalf. They have been given an opportunity to give and call evidence about the disputed issues and to cross-examine, re-examine and make submissions.

The Parties’ Dealings

The starting point of the parties’ dealings is a chain of emails on 8 November 2021.[4] On that day, Ms Mittag spoke with Kel Jonasen of F & M Fabricators Pty Ltd (F & M). Kel Jonasen is the father of Mr Jonasen although Ms Mittag did not know this at the time. Nothing turns on this however.
[4]Exhibit 7.
A roofer that Ms Mittag knew had given her the name of F & M as a potential source for the supply of the hoods. The roofer told her that F & M had made the existing hoods on the house in the past. She sent an email to Kel Jonasen at 10:02am on 8 November 2021 referring amongst other things to the fact that the downstairs windows at the house were leaking and she was hoping to get some awnings or hoods supplied and installed that “matched the upstairs awnings …” as soon as possible. She attached some photos of the house and said that she thought that approximately nine hoods would be required. She was uncertain about the dimensions of the hoods and said that they would need to be measured.
Kel Jonasen replied at 12:52pm on 8 November 2021. He said that he had spoken with a roofer that was a customer and that person should be able to help Ms Mittag. He gave her the email address and phone number for Mr Jonasen.
On 9 November 2021 at 8:25am, Ms Mittag forwarded that email to Mr Jonasen and relevantly said: “further to my & Kel’s notes below, I am interested in obtaining a measure & quote for supply & installation of approximately 9 colonial window hoods for the downstairs windows at my home in Fairfield that match the window hoods on the upper level.” She said that she would try to call him that morning and she gave her mobile telephone number.
Mr Jonasen’s evidence was that there was a telephone call after this email to organise an inspection. Ms Mittag did not dispute this.
At 9:48am on 9 November 2021, Ms Mittag sent an email to Mr Jonasen that referred generally to their discussions and relevantly said: “I would like downstairs windows on both sides of the house measured & quoted for window hoods to all windows to match the existing metal window hoods on windows above them. There is a window downstairs behind the front staircase, but I don’t think I can get anything on that window to protect it.”
The photos attached to Ms Mittag’s email are in evidence.[5] Of relevance is a photo of the house where in the foreground there can be seen a window above a staircase at the front upper level with a hood above it; and in the background there can be seen a row of windows at the side upper level with hoods above them.
[5]Exhibits 1 & 8.
At the heart of this dispute is the fact that the hoods shown in that photo are not the same. The hood at the front has an uneven bottom edge while the hoods at the side have a straight bottom edge.
For convenience, in these reasons I refer to the hood with the uneven edge as “uneven hood(s)” and I refer to the hoods with the straight edge as “even hood(s).”
The hoods differ in style in other ways too. There is a photo showing both hoods for comparison and upon which Ms Mittag has drawn their dimensions.[6] She gave evidence that she measured the hoods with a tape measure for accuracy. Mr Jonasen had an opportunity to cross-examine Ms Mittag about the dimensions and ultimately he did not dispute them. While the hoods are the same colour, their dimensions are different.
[6]Exhibit 8.
While there were different types of hoods, in November 2021 there was only one uneven hood and it was at the front of the house, and not the sides. All of the hoods to be supplied and installed by Infinite were to be at the sides, and all of the existing hoods at the sides were even hoods. There was in fact a third style of hood, being a skillion-awning hood above a kitchen window, but the parties agreed that it is quite different and irrelevant.
Infinite prepared a document comprising six pages named “proposal reference: Q1200” and dated 24 November 2022 (sic).[7] Three of its pages were respectively headed “terms & conditions”; “quote summary”; and “specifications & inclusions”.
[7]Exhibit 3.
The terms and conditions provided that the quote was valid for 30 days from the date of its delivery. There were to be no retentions and all variations were to have an agreed price and approved in writing before commencement. Payment was required in full within 14 days upon completion unless otherwise agreed.
The quote summary described the works as “supply & install window hoods” with a price of $5,044.43 plus GST.
The specifications and inclusions were “supply & install window hoods.” Nine in total were identified with some differing dimensions but otherwise uniformly described as “window hood to replicate (cottage green)”. Exclusions were expressed as “no allowance for replacement of second story hoods” (sic) … “no allowance for window under front staircase”.
A copy of the quote summary page was signed by Ms Mittag on 22 November 2021 together with the words, “Quote accepted on 22/11/21. Please proceed with work.”[8]
[8]Exhibit 4.
It is relevant to note here that Ms Mittag arranged for the works to be carried out while she was living in Canberra. The house was sometimes rented to others. She said she was keen to have the works carried out quickly because the windows were leaking and she anticipated that there would be wet weather over the summer months. Her email to Infinite at 8.25am on 9 November 2021 referred to this issue.
Further, it is relevant that Mr Jonasen said that he attended at the house before commencing the works. He measured the uneven hood at the front and then went ahead ordered the new hoods to match that hood from F & M after confirming that it had supplied hoods for the house before.
The works were carried out on 14 December 2021. At the time, Ms Mittag had a friend named Anna Little staying at the house. In her evidence, Ms Little said that she was at the house on that day. She went downstairs and took a photo of the hoods and sent it by text message to Ms Mittag. Following this, they exchanged text messages about the correctness of the hoods; the height to which they were installed being too low; the potential for the uneven hoods to be cut to match the even hoods; or for even hoods to be obtained in about three weeks. Infinite ceased work after seven of the nine hoods had been installed.
As can be expected, Mr Jonasen and Ms Mittag had some conversations and exchanged correspondence from that point in time.[9] In particular, Mr Jonasen said that he had a telephone conversation with Ms Mittag on 15 December 2021 and made a diary note of it. He says Ms Mittag’s main issue with the hoods was the height and she said that she had “accidentally” photographed the front window hood when sending her emails on 8 and 9 November 2021.[10] Ms Mittag denied saying this and produced a text message from Mr Jonasen on 14 December 2021 where he said, amongst other things, “Apologies for this debacle…”.[11]
[9]Exhibit 9.
[10]Exhibits 1 & 5.
[11]Exhibit 6.
In summary however, these communications from and after 14 December 2021 largely revolved around the parties raising arguments based on their actual intentions, beliefs and expectations, and attempting to attribute blame. As will be seen below, they are not relevant to the proper determination of this dispute.

Infinite’s Position

Mr Jonasen said that Infinite had supplied hoods in accordance with the photos that Ms Mittag sent in her emails on 8 and 9 November 2021. He said that she had failed to mention that there were multiple different hoods at the house.
He maintained that Infinite matched the hood in the foreground of the photo described above and that was what it was required to do. He confirmed that the uneven hoods cannot be altered to match the even hoods.
As to the height of the hoods, he essentially said they were installed for the purpose of stopping water leaks, and they do so. He said that Ms Mittag was very persistent in having the hoods installed quickly to fix the leaks. He said that installing the hoods any higher would not fix the leaks, and they have been installed as per common practice and in accordance with all legislation.
Finally, he said that the main issue was the lack of detail in the specifications, but this had been provided by Ms Mittag. He said that her photos had misled him and she should still pay for the hoods even if she is unhappy with the aesthetic of them. He says Infinite should not have to pay for her change of mind.[12]
[12]Exhibits 1 & 2.

Ms Mittag’s Position

Ms Mittag said that Infinite supplied the wrong hoods. She said her emails of 8 and 9 November 2021 specified hoods to match the ones on the windows above them but she did not request Infinite to match the design based on the photos. She said she provided the photos as house identification as she was not in Brisbane. The mismatch in hoods causes the aesthetic of the house to suffer.
It was important for her to obtain hoods that stopped the water leaks and she accepted that she wished to obtain them quickly. However, while the hoods may have assisted in achieving this, she said that they have been hung too low. She said that when hung, the uneven bottom edge was 1.7 metres from the ground. This height, combined with the uneven edge, poses a risk of injury to people at the house using an adjacent path. She has had to block access to the path pending this dispute. Mr Jonasen said that the bottom of the hoods was about 1.8 metres from the ground.
She complained that the contract documents prepared by Infinite were incomplete in some respects, and particularly, that the specifications lacked detail. However, she did not dispute that she signed the quote summary page.
Importantly, Ms Mittag said that if the even hoods had been supplied and installed, then their edges would be about 2 metres from the ground when hung, and they would also be effective to stop water leaks. Mr Jonasen said that he was unable to dispute this.

The Contract is Ambiguous

The contract for the supply and installation of the hoods is comprised of the six-page document prepared by Infinite and signed by Ms Mittag in the way described above. It is a commercial contract.
In essence, this is a dispute about the proper meaning of that contract, particularly, about which type of hoods had to be supplied and installed. At the hearing, the parties agreed that this was so.
I find that the contract is ambiguous in its specification of the hoods that had to be supplied and installed. I have set out the relevant wording of the contract in that regard above. Left alone, that wording is susceptible to more than one meaning.

The Applicable Law

The legal principles to be applied to determine the meaning of the terms of a commercial contract are well-settled.
In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd, the High Court of Australia said that:[13]
[13]Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[51] per French CJ, Nettle & Gordon JJ.
“The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.
In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.
Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.
However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.
Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties’ statements and actions reflecting their actual intentions and expectations.
Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption “that the parties … intended to produce a commercial result”. Put another way, a commercial contract should be construed so as to avoid it “making commercial nonsense or working commercial inconvenience”.”

(footnotes omitted).

Discussion

The text and context of the contract confirms that it was a contract for the supply and installation of hoods. Expressly, the hoods were to “replicate”. Hoods on the upper level were expressly referred to below this on the same page. No allowance was to be made for their “replacement”. No allowance was to be made for the window under the front staircase, above which on the upper level there was a window with the single uneven hood.
Here, having regard to the surrounding circumstances – as described in the Mt Bruce case above – is necessary and permissible. On the evidence, the commercial purpose of the contract was to supply and install hoods that matched existing hoods and stopped water ingress for the quoted price. Contrary to Ms Jonasen’s position, there was not one purpose of stopping water leaks that was more important than anything else.
As to which existing hoods were to be matched, Ms Mittag’s emails on 8 and 9 November 2021 referred to existing “hoods” in the plural, and not the singular. While the photo relied upon by Mr Jonasen emphasised the uneven hood at the front of the house by being in the foreground, the row of even hoods could be plainly seen in the photo too. It can also be seen in the photo that the hoods are similar, but not the same. Their differences could also reasonably be seen by someone attending at the house to perform measurements, as Mr Jonasen did.
Ms Mittag’s email of 9 November 2021 effectively excluded any works at the front of the house where the uneven hood was situated. The contract expressly excluded that work. The focus of the works was the sides of the house, where all of the hoods were to be installed. The only hoods at the sides were even hoods.
Supplying uneven hoods would detract from the aesthetic of the house. The hoods are prominent, exposed features on the exterior. Moreover, even hoods could be installed with a minimum height of 2 metres and still be effective to fix the problem of leaks. Installing uneven hoods at 1.7m to 1.8 metres would pose a safety risk and detract from the amenity of the house because there is a path at the side. The house has been used as an investment property, rented out to tenants, who may be adversely affected by such matters.
Once installed, the hoods are fixtures that may remain in place indefinitely. The parties agree that they cannot be altered. The above problems may be considered relatively permanent.
When the evidence is viewed objectively, a reasonable businessperson would have understood the contract to mean that the hoods to be supplied and installed under the contract were even hoods. I find that this produces a commercial result in accordance with the principles from the Mt Bruce case extracted above.
To find otherwise would produce an uncommercial result. The evidence is firmly to the effect that while uneven hoods may fix the problem of water leaks, they introduce the significant new problems discussed above. A reasonable businessperson would not have understood the contract to mean this.
As stated in the extract from Mt Bruce above, the parties’ statements and actions reflecting their actual intentions and expectations are irrelevant. It is unnecessary for me to find whether or not Ms Mittag said, after the contract was formed, that she “accidentally” photographed the wrong hood, or whether a different contract would have made a difference. Nothing turns on these matters in any event.

Conclusions and Orders Made

On the above basis, Mr Mittag is not liable to pay the amount claimed by Infinite and it is appropriate to give effect to this by dismissing Infinite’s application.[14]
[14]QBCC Act s 77(3)(b).
As to the relief sought by Ms Mittag, I am satisfied that the works involved the alteration or improvement of a building and that they were defective because they are unsatisfactory.[15] It is appropriate to order Infinite to rectify the works by removing the hoods within a reasonable time, but not to otherwise order in the form Ms Mittag seeks.[16]
[15]QBCC Act s 75(1)(b), schedule 2.
[16]QBCC Act s 77(3)(g).

I make the following orders:
1.The application is dismissed.
2.The applicant, Infinite Roofing Pty Ltd, is to rectify the works by removing the window hoods supplied and installed on 16 December 2021 at the respondent’s premises within 28 days.