Kaushal v Kalia & Sons Pty Ltd
[2014] QCAT 310
•17 June 2014
| CITATION: | Kaushal v Kalia & Sons Pty Ltd [2014] QCAT 310 |
| PARTIES: | Rohit Kaushal (Applicant) |
| v | |
| Kalia & Sons Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL284-13 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 20 March 2014 |
| HEARD AT: | Mackay |
| DECISION OF: | Member Johnston |
| DELIVERED ON: | 17 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Kalia & Sons Pty Ltd must pay Rohit Kaushal the sum of $7,567.85 by 10 July 2014. 2. The counter-claim is dismissed. |
| CATCHWORDS: | BUILDING MATTERS – Claim for payment – dispute over the terms of the contract |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Rohit Kaushal |
| RESPONDENT: | Karan Kalia a Director of Kalia & Sons Pty Ltd |
REASONS FOR DECISION
On or about 8 October 2013 the Respondent asked the Applicant to provide a quote to carry out a shop fit out for a proposed restaurant, to be known as the “Indian Summer Restaurant” at Shop 6, 265 Shute Harbour.
The Applicant provided a quote (the “Original Quote”) and was engaged to undertake the work.
The Applicant's case is that the Respondent varied the work required and he charged the Respondent for the extra work which was outside the Original Quote.
The Respondent contends that there was an oral term of the agreement that the work would be undertaken in seven days. The Respondent also contends that work forming part of the Original Quote had never been completed or had been performed in a manner that was not workman like.
The Respondent did not comply with the Orders of the Tribunal made by Senior Member Oliver on 12 December 2013 which directed Kalia & Sons Pty Ltd to file two copies in the Tribunal and give one copy to Rohit Kaushal of the following documents:
(a) Kalia & Sons Pty Ltd’s statement of evidence, which must be paged numbered;
(b) The statement from each witness to give evidence for Kalia & Sons Pty Ltd at the hearing including any experts; and
(c) Any documents referred to in a statement of evidence which must be, identified, explained and attached to the appropriate witness statement, by: 4 pm on 6 March 2014.
The Orders warned the Respondent that: ‘no party will be allowed to present any evidence at the hearing that is not contained in the written statements without justifying the need for such additional evidence to the Tribunal’.
The Respondent conceded that it had not complied with the Order. The Respondent had filed no material to support the Response to the Application and the Counter-Claim before the hearing. The Respondent was not able to provide any satisfactory basis its non-compliance of the Order.
The Tribunal informed the parties that the Tribunal intended to proceed on the basis that the Applicant would present his case and the Respondent would have the opportunity to cross-examine the Applicant's witnesses and would be allowed to present his arguments.
What were the terms of the contract between the parties?
Mr Kaushal holds a Contractor’s Licence number 1265889 with the Building Services Authority that allows him to undertake Carpentry work.
Mr Kalia approached Mr Kaushal on about 3 October 2013 to provide a quotation to supply materials and labour to carry out a fit out of new restaurant.
Mr Kaushal agreed to provide a quote and on Saturday, 5 October 2013 he and his wife travelled to the Airlie Beach to meet with Mr Kalia and to discuss the nature of the work that was required to be carried out.
On 8 October 2013 Mr Kaushal forwarded to Mr Kalia a quote for $10,300 including GST to carry out the following works, namely: to replace existing ceiling and frame and gyprock the ceiling; to install a little wall; to install a counter for a bain marie and bar; and to install a bar on the outside of the premises made of pine or merban decking (sanded and polished).
Mr Kaushal made it clear in the Original Quote that prices were only approximate and could vary and also that: ‘Price can change if you like to go with different materials or want some alterations’.
Mr Kalia accepted the quotation and Mr Kaushal commenced work on the fit out of the shop on Monday, 14 October 2013 and worked through until Tuesday 29 October 2013.
Mr Kaushal’s evidence was that on finishing work on 18 October he was unable to proceed any further because it was necessary for Mr Kalia to arrange for the installation of an oven exhaust fan that needed to be fitted into the ceiling. Mr Kaushal stated that he only found out that the exhaust fan had been fitted late on Monday, 21 October 2013.
Mr Kaushal returned to the site on Wednesday 23 October 2013 so that he could put up the framework and be there when the electrician turned up. Mr Kaushal told the Tribunal that at the end of 27 October he only had one more days work to complete the fit out. He did not return on 28 October because he had undertaken plastering work on the ceiling and wanted it to dry before he did the final touches including putting a bench top on the counter, sanding excess plaster of the ceiling and installing a small two way door.
On 29 October 2013 when he returned to the site he found the electrician and floor layers were working and he told Mr Kalia that he would come back to finish the job when the floor layers had finished.
Mr Kaushal did not do any further work on the site as Mr Kalia engaged other contractors to finalise the work.
On 30 October 2013 he sent an e-mail to Mr Kalia in which he set out his final costs. This was made up as follows:
Previous quote
$9600 (ex GST)
Bench top the counter
$500
Shelves and ply inside of counter
$1000
Decking on the front of counter
$1500
Small stairs
$500
Rounds Rods
$30
Glass for bar counter front
$300
Ceiling frame material
$300
Total $15,103
$13730 plus GST $1373
On for November 2013 Mr Kaushal reduced his claim by $1000 and sent to Mr Kalia an invoice for $7000. He told the Respondent that he would accept this amount and walk away.
The Respondent has paid the Applicant the sum of $7000 as progress payments but has refused to make any further payment to the Applicant.
The Tribunal finds that the contract between the parties was originally based on the Original Quote provided by Mr Kaushal on 8 October 2013 to Mr Kalia.
Was there an oral term requiring the work to be finished in seven days?
Mr Kalia alleges that there was an oral term of the contract that the work would be undertaken within seven days.
Mr Kaushal denies that he was ever told that the contract had to be completed within a certain time frame. Mr Kalia told him that the Responded had received a six-month rent free period to get the restaurant up and running.
Mr Kalia was unable to provide any evidence to substantiate this allegation.
The Tribunal prefers the evidence of Mr Kaushal in the absence of any substantiation of the allegation.
The Tribunal finds that there was no oral term of the agreement reached between the parties requiring the work to be completed in seven days.
Was the ceiling complete?
Mr Kalia alleges that the work to replace the existing ceiling with frames and a gyprock ceiling was never completed and the Respondent had to hire other contractors to complete the work.
Mr Kaushal accepts that it was his responsibility in accordance with the Original Quote to undertake this work. His evidence was that all he needed to do to finish the job was to sand the ceiling and make some minor touch ups.
Mr Kalia produced a Tax Invoice (exhibit 2) from P&D Fitzgerald and another from Joe Brown Plasterer and put it to Mr Kaushal that there was much more work to be undertaken to the ceiling for it to be completed.
Mr Kaushal objected on the basis that: firstly he disagreed with the allegation; and secondly the persons who provided the accounts had not provided a statement and were not available to the questioned.
Mr Kaushal told the Tribunal that Mr Kalia had wrongfully prevented him from completing the work. He has charged the Respondent for the work he has undertaken and the Respondent should be responsible for any costs that it has incurred from engaging other tradesmen.
The Tribunal accepts the evidence of Mr Kaushal in the absence of any credible evidence to the contrary.
The Tribunal is not able to accept the Tax Invoices which are Exhibit 2 as evidence without statements explaining what work had been undertaken and for the witnesses being available to answer questions. This would be unfair to the Applicant. This is the reason why the Tribunal made the Order of 12 December 2013 to avoid this situation occurring.
The Respondent had the opportunity to present whatever evidence that it wanted to present but failed to do so.
The Tribunal finds that the work was incomplete but that Mr Kaushal was wrongfully prevented from completing the work by the actions of the Respondent. The Respondent engaged other contractors to do work on the site.
Variations to the Original Quote
Mr Kalia alleges that the agreement was varied without the agreement of the Respondent. He alleges that the bench top supplied by the Applicant was never actually installed. The Applicant stated that the bench top was not installed because Mr Kalia would not allow him access back on site to finish the job.
The Tribunal accepts the evidence of Mr Kaushal.
Mr Kalia alleges that with the counter there was to be the installation of two shelves that would go under the counter. The Applicant stated that all shelving under the counter and bar counter was installed. The Applicant says that he had put one shelve in the centre and one at the bottom in the bain marie counter and one in the centre in the bar counter.
The Tribunal accepts the evidence of Mr Kaushal.
Mr Kalia alleges in relation to the decking for the front counter that the Applicant sought payment for extra material where no extra material was brought in. The Applicant stated that any decking that was purchased for the front counter was necessary and that he did not charge the Respondent for any extras. He stated further that he purchased extras decking for the bain marie after Mr Kalia requested eco bamboo decking instead of ply.
Mr Kalia acknowledges in relation to the installation of stairs that this was a variation is the Respondent agreed to.
Mr Kalia alleges that the rounds were never installed nor were they in the Original Quote or agreed to be installed by the Respondent. The Applicant states that round rods were not installed as Mr Kalia changed his mind about installing outside lighting. The Applicant says that these have been requested of him and he had purchased the rods and was out of pocket to the extent.
The Tribunal accepts the evidence of Mr Kaushal.
Mr Kalia alleges that the glass for the bar front was never installed by the Applicant. The Applicant states that the glass for the bar front was requested as a variation by Mr Kalia and that the reason for it not being installed was that he was not allowed access back the site to do so.
The Tribunal accepts the evidence of Mr Kaushal.
Mr Kalia alleges that the ceiling frame material was unilaterally decided by the Applicant for installation and was not installed at the request of the Respondent nor was it in the Original Quote. The Applicant states that the metal framing was his choice. The Applicant says that it was a commercial kitchen and as such it was best to use metal framing for suspended ceilings in order to avoid the risk of fire from timber framing. The Applicant says that there was a good finish to the framing.
The Tribunal accepts the evidence of Mr Kalia. However Mr Kalia does not explain how the Respondent has been disadvantaged by this variation by the Applicant.
Mr Kalia during the course of the hearing conceded that work had been undertaken at the Respondent’s request that constituted variations to the Original Quote. Mr Kalia accepted for example that the small stairs connecting the freezer room was a variation.
The Tribunal prefers the evidence of Mr Kaushal that the work was varied from his Original Quote in several ways at the request of the Respondent (see paragraph 19) during the course of the project.
The Tribunal finds that the Respondent requested several variations in relation to the work to be undertaken on the job which were outside the Original Quote.
Little Wall
Mr Kalia alleges that the Little Wall referred to in the Original Quote was never completed by Applicant and that the Respondent gave the Applicant other instructions in relation to the Wall which were not carried out by the Applicant. The Applicant states that the work was substantially complete to a good standard and that the Applicant would have required only a small period of time to have completed the Little Wall. The Applicant states that the Little Wall was not completed by him because he was not given access to the shop to do this. The Applicant otherwise denies the allegations made by the Respondent. The Applicant referred the Tribunal to the photograph which is Exhibit RK 36 to the Applicant’s Affidavit of Evidence which supports the Applicant's contention that the wall was substantially complete.
The Tribunal prefers the evidence of Mr Kaushal.
The Tribunal finds that the work was substantially complete to a good standard. The Tribunal finds that the Applicant was wrongfully prevented from finishing the work by the Respondent.
Counter
Mr Kalia alleges that the counter was never completed by the Applicant and it was not sanded or polished. Mr Kalia also alleged that it has a lot of open-ended metal points that needed to be repaired by other trades persons to prevent people getting hurt passing the counter. The Applicant states that the counter was essentially complete and it just needed a top shelf to be installed. The Applicant says that there was a delay in installing the top shelf as Mr Kalia changed his mind as to type that he wanted. The Applicant says that he was to install the top shelf on the counter on the 29 October 2013 but was prevented from doing so due to other trades and the floor layers being on-site. The Applicant referred the Tribunal to the photograph which is Exhibit RK 37 to the Applicant’s Affidavit of Evidence which supports the Applicant's contention that the counter was substantially complete.
The Tribunal accepts the evidence of the Applicant that there was very little necessary to complete the job. The photograph which is Exhibit KP 37 supports the Applicant’s contentions that the bain marie counter was without the bench top. The Applicant acknowledged that the work was incomplete. The Tribunal accepts the evidence of the Applicant that the Applicant was unable to complete the works because of the actions of the Respondent.
The Tribunal finds that the work was substantially complete. The Tribunal finds that the Respondent wrongfully prevented Mr Kaushal from completing the work.
Bar top
Mr Kalia alleges that the Bar top was never completed by the Applicant and was not sanded or polished. The Applicant states that the timber for the front of the Bar top was to be pine which would require sanding and polishing however Mr Kalia changed his mind and agreed use eco bamboo decking which is a finished product which does not require sanding or polishing. The Applicant says that all but a few finishing touches were necessary. The Applicant says that he was not able to finish the job because he was not given access to the shop.
The Applicant acknowledges that the work was not complete. The Applicant says that only a few finishing touches were necessary but the Respondent prevented the Applicant from undertaking the work. The Applicant referred the Tribunal to the photographs which were Exhibits RK 38 and RK 39 to the Applicant’s Affidavit of Evidence which supports the Applicant's contention that the Bar Top was substantially complete.
The Tribunal prefers the evidence of Mr Kaushal.
Standards of workmanship
Mr Kalia alleges that none of the works referred to in the Original Quote were completed satisfactorily. Mr Kalia also alleges that the works were not undertaken by the Applicant in a workmanlike manner. The Applicant denies the allegations and states that the Respondent has not provided any evidence to justify these allegations.
The Tribunal views these as serious allegations. The onus is on the Respondent to produce evidence to substantiate these allegations. The Respondent has not presented any evidence to substantiate allegations.
The Tribunal prefers the evidence of Mr Kaushal.
The Tribunal finds that the Respondent has not produced any evidence to support the allegation or workmanship.
The Tribunal finds that the Respondent has prevented the Applicant from completing the job.
The Respondent engaged other tradesmen to complete the work.
The effect of these findings address the Respondent’s counter claim so far as it is alleged that the work was not undertaken in a workman like manner.
The Respondent’s actions in preventing the Applicant from completing the job meant that several elements of the work to done under the Original Quote were substantially complete but had not been finished. The Applicant had to be given the opportunity to complete the works before it could be alleged that the work was defective or done not in a workmanlike manner. The Applicant was not given that opportunity. The Respondent has called no evidence that could support its actions of preventing the Applicant from completing the contract. Those actions in preventing the Applicant complete the work can only be seen as wrong in the circumstances.
The Respondent contends that it expanded the sum of $6624 in addition to the amount referred to in the Original Quote on engagement of other trades and workmen because the work had not been undertaken or not satisfactorily undertaken by the Applicant pursuant to the Original Quote.
The Applicant denies that the work he undertook was unsatisfactory as alleged.
The Respondent needs to do more than simply plead relief. The Respondent must call evidence to support these allegations. The Applicant has provided his Affidavit of Evidence with supporting materials which set out his case in detail. This allows the Respondent to know and understand the Applicant's case. The Respondent has not provided it is Affidavit of evidence with supporting materials. Mr Kalia has made allegations in cross-examining the Applicant which the Applicant denies. Mr Kalia acknowledges that he does not have a background building and does not have any expertise to do evidence about building matters.
The Tribunal prefers the evidence of Mr Kaushal.
Cost of the job
Mr Kaushal states that he sought all his building materials from Bunnings Hardware both in Mackay and at Airlie Beach, Mitre 10 Hardware Cannonvale, Porters Hardware at Cannonvale and Masters Home Improvements Mackay. He also purchased fuel from Coles Express and Eureka operations at Mackay North. He has supplied dates, suppliers and amounts with his Affidavit of Evidence. Exhibits RK 22 to RK 34 to the Affidavit are copies of tax invoices from the suppliers. The total cost of materials was $4776.63. The Tribunal accepts his evidence that he has incurred these expenses in undertaking the work.
Mr Kaushal states that it is usual practice in the building industry to add a builder’s margin of 10% for his time and effort in obtaining materials. The total claim for materials is $5254.29 plus GST equalling $5779.72. The Tribunal accepts his evidence that this is a normal practice within the building industry and that this is an appropriate mark-up time and effort in obtaining materials. The Respondent has not called any evidence disputing the Applicants entitlement to claim this mark-up.
Mr Kaushal states that he worked 133.5 hours on the job and that his hourly rate was $57 per hour plus GST. His evidence is that the Mackay/Central Queensland region $57 an hour plus GST is a reasonable amount. Mr Kaushal has also charged the Respondent $89.33 for incidental costs of phone calls. The Tribunal accepts is evidence that this was his hourly rate.
Mr Kaushal has accordingly claimed:
Materials
$5779.72
Labour
$8370.45
Incidentals
$89.33
Total
$14,239.50
Less paid
$ 7000.00
Balance owing
$7239.50
The Tribunal is of the view that because the Respondent’s actions in wrongfully preventing the Applicant completing the job the Applicant has an entitlement to be paid for the work which he has undertaken. This includes being paid for variations which he undertook at the request of the Respondent.
Mr Kaushal’s evidence is that Mr Kalia asked him to undertake variations but did not ask him to provide a quote the variations. This meant that Mr Karan had no idea of the extra costs that were occurring. Unfortunately in the course of undertaking building work this happens. The client changes his or her mind and does not contemplate that the variations may result in extra costs.
Mr Kaushal has provided his costing to the Respondent. The Respondent has had the opportunity to obtain evidence to challenge his evidence but has not provided any evidence to discredit the costs that Mr Kaushal has charged.
The Tribunal finds that Mr Kaushal has charged the Respondent $14,239.50 for undertaking the job.
The Respondent has paid the Applicant the sum of $7000.00.
The balance of the Applicant’s claim is for the sum of $7239.50.
The Tribunal does not accept that the Respondent has proven any of the other allegations to form the basis of the Response.
The Tribunal dismisses the Respondent’s Response.
The Tribunal orders the Respondent to pay the applicant the sum of $7239.50 by 10 July 2014.
Counterclaim
The Respondent has made a counterclaim against the Applicant in the sum of $6924. The Respondent has not provided statements of evidence to support this claim.
The basis of the Respondent’s counterclaim firstly that the Applicant did not undertake the works referred to in the Original Quote. The Tribunal accepts that the work was incomplete. The Tribunal has found that it was the actions of the Respondent in preventing the Applicant completing the works that is the reason why the works are incomplete. The Respondent has not called evidence to support its claims that there was a problem with the quality of the Applicant’s workmanship. The Respondent claims that it expended the sum of $6624 in engaging other tradesmen to complete work. The Respondent has not called evidence to support its claim in this regard. The Tribunal has accepted the Applicant’s evidence that he undertook the work in a workmanlike manner and that the works were substantially complete. The Respondent has not proved its case.
The Tribunal does not accept that the Respondent has proven any of the other allegations that form the basis of the counterclaim.
The Tribunal orders that the counterclaim be dismissed.
Costs
The Applicant has asked the Tribunal to order and payment of the costs involved: involving the application fees; service of the application; company search; and business search amounting to $328.35.
Legal costs in the Tribunal are not awarded as a matter of course. Each party must bear their own costs[1], unless the interests of justice require the Tribunal to order a party to pay the costs of another party.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009, s 100.
[2]Queensland Civil and Administrative Tribunal Act 2009, s 102.
There is therefore a strong indicator against awarding costs:
Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s.100.[3]
[3]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at [29].
The Tribunal is satisfied in this case that there are good reasons to award these particular costs. The Applicant’s agreement was repudiated by the actions of the Respondent and it was necessary for the Applicant to issue the proceedings. The Respondent filed pleadings in response to the Applicant’s application but took no further steps in the matter. The Respondent failed to comply with the orders of the Tribunal. Also the costs that are being claimed are out of pocket expenses rather than legal costs. The Tribunal allows the Applicant’s claim for $328.35 for costs.
The Tribunal orders that the Respondent pay the Applicant the sum of $7567.85 by 4 pm on 10 July 2014.
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