K C Painting and Decorating v Jagger Pty Ltd - [2013] QCAT 11

CITATION:

K C Painting and Decorating v Jagger Pty Ltd & Anor [2013] QCAT 11

PARTIES:	K C Painting and Decorating ABN 59 529 043 080 (Applicant)
v
Jagger Pty Ltd (First Respondent) Earth Spirit Home Pty Ltd (Second Respondent)

APPLICATION NUMBER:

BDL201-11

MATTER TYPE:

Building matters

HEARING DATE:

18 December 2012

HEARD AT:

Brisbane

DECISION OF:

David Paratz, Member

DELIVERED ON:

9 January 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Earth Spirit Home Pty Ltd pay to K C Painting and Decorating the amount of $8,555.65.

CATCHWORDS:

Construction – liable parties

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Self represented (Christel Doherty)

RESPONDENT:

Jagger Pty Ltd represented by Dale Cliff (MS & Cliff Lawyers)

Earth Spirit Home Pty Ltd self represented by Brett Blacklow

REASONS FOR DECISION

This is an application for monies owing for painting work done.
The Applicant is a business, KC Painting & Decorating (KC), run by Kevin Doherty and his wife Christel Doherty.
Statements of evidence have been filed on behalf of each party. It was agreed on the hearing of this matter that those statements would form the evidence in the matter, that each party would make oral submissions, and that I would then deliver my decision in writing.
The evidence consist of the following documents:
Statement of Kevin Doherty (on behalf of KC) – Filed 28 June 2012
Statement of George Nichols (on behalf of Jagger Pty Ltd) – Filed 31 July 2012
Statement of Brett Backlow (on behalf of Earth Spirit Home Pty Ltd) – Filed 14 November 2012
I heard oral submissions from each party.
In late 2010 and early 2011, KC did painting work on a group of houses being built at Wakerley.
This application is one of 5 separate actions that have resulted from the property development and events surrounding it. There are 2 actions in the Federal Magistrates Court, 2 actions in this Tribunal, and one action in the Supreme Court. It is a complicated and unfortunate litany of events.
KC has been caught up in greater events. Their basic position is simple – they performed painting work to the value of $8,555.65 and have not been paid for it. There is no challenge to the fact that KC performed the work, or that they are due the amount invoiced. Whilst there is a contention by Jagger Pty Ltd (Jagger) as to the work being of poor quality and requiring remediation, there is no material as to that, and no issue as to that in contention.
The unpaid invoices which constitute this claim were made out by KC to Jagger, and are as follows:
a)    7 February 2011 – $4,400.00
b)    7 February 2011 – $1,955.65
c)    25 March 2011 – $2,200.00
The question in this application is, who is responsible to pay KC for their work?
The matter concerns 10 houses which were to be built on land at Nile Close, Wakerley. The project was being undertaken by members of the Nichols family. The overall plan was for 5…

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 11
Decision Date

CaseChat Overview and Summary

The case of K C Painting and Decorating v Jagger Pty Ltd concerns a dispute over payment for painting work performed by K C Painting and Decorating on a property development project in Wakerley. The Applicant, K C Painting and Decorating, filed an application seeking payment of $8,555.65 for painting services rendered. The First Respondent, Jagger Pty Ltd, and the Second Respondent, Earth Spirit Home Pty Ltd, were the entities in contention as to who was liable for the payment of the Applicant's invoices. The matter was heard by David Paratz, Member, in the Queensland Civil and Administrative Tribunal.

The legal issues before the court were whether Jagger Pty Ltd or Earth Spirit Home Pty Ltd was liable for payment of the Applicant's invoices. The Applicant had entered into a Period Subcontract with Earth Spirit Home Pty Ltd, and had been directed by the latter to issue invoices to Jagger Pty Ltd. The Applicant argued that Jagger Pty Ltd was liable for payment, while Earth Spirit Home Pty Ltd contended that it was not liable for the invoices issued to Jagger Pty Ltd.

The court found that there was a contractual relationship between K C Painting and Decorating and Earth Spirit Home Pty Ltd, and that the latter was liable for the uncontested invoices of the Applicant. The court noted that the Period Subcontract between the parties established a legal relationship, and that Earth Spirit Home Pty Ltd had assumed an active role in directing and supervising the Applicant's work, consistent with that of a head contractor. Furthermore, an email sent by Debra Nichols on behalf of the Nichols family appointed Earth Spirit Home Pty Ltd as the responsible entity for the construction of the premises, which Earth Spirit Home Pty Ltd did not dispute and acted in accordance with.

Therefore, the court concluded that Earth Spirit Home Pty Ltd was liable for payment of the Applicant's invoices, and ordered Earth Spirit Home Pty Ltd to pay K C Painting and Decorating the amount of $8,555.65.

In summary, the court found that Earth Spirit Home Pty Ltd was liable for payment of the Applicant's invoices, and ordered Earth Spirit Home Pty Ltd to pay K C Painting and Decorating the amount of $8,555.65. The court found that there was a contractual relationship between the parties, and that Earth Spirit Home Pty Ltd had assumed a legal relationship with the Applicant by entering into the Period Subcontract and directing and supervising the Applicant's work.

Orders