Jacques v Lohman - [2019] QCAT 263

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jacques v Lohman & Anor [2019] QCAT 263

PARTIES:

IAN CLARK JACQUES
(applicant)

v

GRAHAM J LOHMANN
and
MERYL C LOHMANN

(respondents)

APPLICATION NO/S:

BDL225-17

MATTER TYPE:

Building matters

DELIVERED ON:

26 August 2019

HEARING DATE:

14 September 2018 and 19 November 2018

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

ORDERS:

Graham J Lohmann and Merrill C Lohmann are to pay the amount of Six Thousand One Hundred and Forty-One Dollars and Sixty-Three Cents ($6,141.63) to Ian Clark Jacques.

CATCHWORDS:

CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – whether the terms of a written contract applied – whether the building contract was a ‘cost plus’ or a ‘lump sum’ contract – where the scope of works was uncertain – where positive and negative variations were considered.

Queensland Building and Construction Commission Act 1991 (Qld), s 77(h)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Lavish Constructions Pty Ltd v Haywagner Investments Pty Ltd [2017] QCAT 52
Nichols v Earth Spirit Home Pty Ltd [2015] QCA 219
Swindells v Hosking & Anor (No 2) [2012] QDC 17

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Mr Jacques conducted a domestic building business trading as ‘I and K Construction Solutions’ (‘the builder’). He performed building works for Mr Lohmann and Ms Lohmann (‘the owners’) at their property at 16 Towers Street, Charters Towers, in Queensland.
The works included renovations to an existing house, and work on a new large shed and concrete carport slab and driveway.
The builder claims the amount of $39,310.79 as an amount owing for work performed, together with interest and costs.
The owners counterclaim for a total of $14,865.90 as follows:-
(a)Variations of $6,956.70;
(b)Late completion charges of $2,750.00;
(c)Replacement of vertical blinds of $2,666.00;
(d)Payment for loss of income by Ms Lohmann of $195.00; and
(e)Legal costs of $2,298.20.
The parties initially entered into an HIA ‘Alteration, Addition and Renovation Contract’ dated 21 September 2016. The contract was expressed to be between J and Merrill C Lohmann as owners, and Ian Clark Jacques as building contractor. The contract price (including GST) was $161,595.33.
The owners have paid $145,435.79 to the builder. They have not paid the final stage payment of $16,159.53.
The HIA contract provided for work to start on 31 October 2016 and to reach practical completion within 63 days after commencement. An ‘amended progress payment schedule’ was attached to the contract follows:

Deposit

5%

$8,079.76

Demolition & stripout

30%

$48,478.60

Bathroom installation

25%

$40,398.83

Fix out & kitchen

30%

$48,478.60

Balance & practical completion

10%

$16,159.53

Total

100%

$161,595.32

A ‘Scope of Works’ was attached to the contract. It is relevant to reproduce the whole of that document:
Project: 16 Towers Street Charters Towers
Owners: Graham and Merrill Lohmann
Builder: I & K Jacques Construction Solutions
Licence: 1148100
Project cost: as per contract
Statement of Purpose:-
The purpose of the Scope of Works is the implementation of building works to be carried out…

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: [2019] QCAT 263
Decision Date: 26 August 2019

CaseChat Overview and Summary

The case of Jacques v Lohman was before Graham J in the Queensland Civil and Administrative Tribunal. The parties were Ian Clark Jacques, the builder, and Graham J Lohmann and Merrill C Lohmann, the owners. The dispute centred around the terms of a written contract between the parties and whether it constituted a ‘cost plus’ or a ‘lump sum’ contract. The issue arose due to the uncertain scope of the works, leading to positive and negative variations being considered.

The legal issues the court had to determine were whether the terms of the written contract applied and whether the contract was a ‘cost plus’ or a ‘lump sum’ arrangement. The court examined the written contract, the parties' correspondence, and their actions post-contract. The owners argued that the contract was revived, but they could not provide evidence to support this claim. The builder argued that the work was proceeding on a ‘do and charge’ basis, but they also could not provide evidence of the owners' agreement to this. The court had to determine the basis of the contract and whether the builder was entitled to recover for work done under a wholly oral building contract.

The court found that no further written contract was entered into after the initial agreement on 21 September 2016. The parties had further correspondence and discussions regarding the pricing and scope of work, but no clear arrangements were made. The court applied the principles of quantum meruit and unjust enrichment to assess a fair price for the work done by the builder. The court held that the builder was entitled to recover for the work done under the wholly oral building contract, as the failure to put the contract in writing did not render it unenforceable. The court ordered Graham J Lohmann and Merrill C Lohmann to pay the builder the sum of Six Thousand One Hundred and Forty-One Dollars and Sixty-Three Cents ($6,141.63).

Orders

Orders of the court

Graham J Lohmann and Merrill C Lohmann are to pay the amount of Six Thousand One Hundred and Forty-One Dollars and Sixty-Three Cents ($6,141.63) to Ian Clark Jacques.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAHAM J

The owners deny that the parties proceeded on an unfixed price arrangement.[12][12]Ibid [14].Decision as to Contract I will make a determination as to the form of contract at the outset of these reasons, as the treatment of the various claims is dependent upon that determination. It is clear that the parties entered into a written contract on 21 September 2016. It is also clear that the owners withdrew from that contract, and their withdrawal was not challenged by the builder. The parties then proceeded to engage in building work, commencing on 8 November 2016. Unfortunately, prior to the commencement of work, the parties did not make clear as to the basis upon which each thought they were proceeding. The owners refer to the initial contract having been ‘revived’, but cannot point to any document or correspondence with the builder, which clearly evidences such a legal step. The builder alleges that the work was proceeding on a ‘do and charge’ basis, but cannot point to any document or correspondence with the owners which clearly evidences their agreement to that course. The basis of a contract is that parties enter into certain business arrangements. A contract may be oral or written, or it may be partially oral and partially written. It is an offence under Section 67G of the Queensland Building and Construction Commission Act 1991 (Qld) for a building contractor to enter into a building contract that is not put into writing. However, a failure to do so does not deprive a builder of an ability to recover for work done under a wholly oral building contract, as held by the Court of Appeal in Nichols v Earth Spirit Home Pty Ltd[13]:[32] The Appellate Tribunal correctly found that the fact that the respondent had committed an offence, by entering into a building contract which was not reduced to writing, did not render the wholly oral contract between the respondent and the applicant unenforceable. The Appeal Tribunal also correctly found that nothing in section 67E(2) of the Act required a finding that the wholly oral building contract was unenforceable. There are also no good reasons of public policy to support a conclusion that the wholly oral building contract was unenforceable. [33] This conclusion renders unnecessary any consideration of the alternate claims raised by the respondent’s notice of contention for recovery on the basis of a quantum meruit or unjust enrichment. [13][2015] QCA 219. No further written contract was entered into after 21 September 2016. The parties did have further correspondence and discussions with each other as to the pricing of, and scope of, work. Where no clear arrangements exists as to assessment of the remuneration of a builder, an assessment of quantum meruit may apply, which assesses and allows a fair price for the work that a person does for another. Similarly, the principles of ‘unjust enrichment’ or restitution, provide that one person should not unfairly receive a windfall benefit from the effort of another, at the expense of the other, may apply.

Ratio Decidendi

Legal Principle Established

Established by: GRAHAM J

Full text does not contain this section.

CITATION:	Jacques v Lohman & Anor [2019] QCAT 263
PARTIES:	IAN CLARK JACQUES (applicant)
v
GRAHAM J LOHMANN and MERYL C LOHMANN (respondents)
APPLICATION NO/S:	BDL225-17
MATTER TYPE:	Building matters
DELIVERED ON:	26 August 2019
HEARING DATE:	14 September 2018 and 19 November 2018
HEARD AT:	Brisbane
DECISION OF:	Member Paratz
ORDERS:	Graham J Lohmann and Merrill C Lohmann are to pay the amount of Six Thousand One Hundred and Forty-One Dollars and Sixty-Three Cents ($6,141.63) to Ian Clark Jacques.
CATCHWORDS:	CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – whether the terms of a written contract applied – whether the building contract was a ‘cost plus’ or a ‘lump sum’ contract – where the scope of works was uncertain – where positive and negative variations were considered. Queensland Building and Construction Commission Act 1991 (Qld), s 77(h) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Lavish Constructions Pty Ltd v Haywagner Investments Pty Ltd [2017] QCAT 52 Nichols v Earth Spirit Home Pty Ltd [2015] QCA 219 Swindells v Hosking & Anor (No 2) [2012] QDC 17
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented

Deposit	5%	$8,079.76
Demolition & stripout	30%	$48,478.60
Bathroom installation	25%	$40,398.83
Fix out & kitchen	30%	$48,478.60
Balance & practical completion	10%	$16,159.53
Total	100%	$161,595.32