Keith v Wide Bay Stumping

CITATION: Keith v Wide Bay Stumping [2011] QCAT 623

PARTIES:	Mr Peter Keith (Applicant)
v
Wide Bay Stumping (Respondent)

APPLICATION NUMBER:   MCDO989-11

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 28 October 2011

HEARD AT: Brisbane

DECISION OF: Kate Buxton, Adjudicator

DELIVERED ON: 2 December 2011

DELIVERED AT: Brisbane

ORDERS MADE:      Application dismissed.

CATCHWORDS:  Claim for return of deposit – applicant purported to terminate the contract – wrongful termination – estimate of contractual losses

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Peter Keith
RESPONDENT:	Mr Page (by telephone)

REASONS FOR DECISION

1. By application 989-11 Mr Keith, the applicant, who requested that Wide Bay Stumping, the respondent, undertake work at a property owned by him, sought to recover the deposit of $3,300.

1. Mr Keith claimed this amount as a debt on the basis that the work was not completed in accordance with the terms of the contract and, in particular, raised the following issues:

a)The scope of the work.

b)Inadequate customer service and delay.

c)Retention of the deposit in contravention of the Domestic Building Contracts Act 2000.

1. The respondent resisted the relief on the basis that the value of the works performed pursuant to the contract exceeded the deposit of $3,300 which the applicant has retained.

Scope of works

1. The key document setting out the terms of the contract between the parties is on Wide Bay Stumping letterhead, bearing the type written date 27 September 2010, and the heading “contract”.  The first part of the document is a quote for the relevant restumping work in the sum of $10,960.00.

1. At the foot of the page is a paragraph setting out the terms upon which the parties would contract for the work, including for payment of the deposit, liability for costs incurred and retention of title over any goods supplied.

1. Mr Keith signed this paragraph on 9 October 2010 but stated that he did not appreciate that this amounted to entering into a contract for the works.  Where the words of a written contract are clear, the subjective intent of one party is not to be preferred over the plain express meaning of those words.[1]  The quoted amount of $10,960.00 is defined in the relevant paragraph as the “contract sum” and Mr Keith agreed by those words to pay (and, in fact, paid) a deposit said to be payable “on acceptance of this contract”.

   [1]Byrnes v Kendle [2011] HCA 26 at [98] per Heydon and Crennan JJ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179.

1. I accept, therefore, that on and from 9 October 2010 the applicant had contracted with the respondent to perform the works described in that document. 

1. Mr Keith asserted that Wide Bay Stumping was to provide rails and palings as part of the scope of the contract.  This is refuted by the respondent, who relied on the terms of the contract.  It provided, expressly, for “removal of palings and rails” then provided “rails and palings to be fitted by…