Lang & Norton v Edler
[2014] QCAT 153
•15 April 2014
| CITATION: | Lang & Norton v Edler [2014] QCAT 153 |
| PARTIES: | Warren Lang and Tracey Norton (Applicants) |
| v | |
| Ralph Edler (Respondent) |
| APPLICATION NUMBER: | BDL146-13 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 11 April 2014 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Member Cotterell |
| DELIVERED ON: | 15 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Ralph Edler is substituted for the Respondent named as Edlerindustries. 2. Mr Ralph Edler’s claim for $7,000 is dismissed. 3. Mr Ralph Edler shall pay Mr Lang and Ms Norton the sum of $14,070. 4. Mr Lang and Ms Norton’s claim for restitution is dismissed for lack of evidence. 5. Mr Lang and Ms Norton’s claim that the alleged harrassment by text messages from Mr Edler cease is dismissed as not within the jurisdiction of the Tribunal. 6. Ms Norton is referred to the QBCC for investigation as to whether or not she should be prosecuted for breaches of the requirements of the owner builder permit. |
| CATCHWORDS: | Owner builder engaging unlicenced building contractor – Unlawful carrying out of building work – unlicenced building contractor not entitled to any monetary or other consideration for work – can claim as reasonable remuneration for carrying out building work – the amount paid in supplying materials and labour for carrying out the building work Owner builder required to comply with conditions of Owner builder permit Quensland Building and Construction Commission Act 1991 Section 42 applied. Sections 43D and 44E considered. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS: | Warren Lang and Tracey Norton were self represented |
| RESPONDENT: | Ralph Edler was self represented |
REASONS FOR DECISION
The Claims
The Applicants, Warren Lang (Mr Lang) and Tracey Norton (Ms Norton) sought relief from payment of $14,000, alleged to be claimed by Edlerindustries, a business name used by Ralph Edler (Mr Edler). The Tribunal at the start of the hearing ordered that Mr Edler be substituted for the Respondent named as Edlerindustries. Neither party objected to this order and Mr Edler was not disadvantaged by it. Mr Lang and Ms Norton also sought restitution but provided no evidence or quantification of the amount and the alleged harrassment by text messages from Mr Edler cease.
Mr Edler claimed $7,000, being the amount he had claimed on 21 December 2011, which he said was required to be paid to him to enable him to continue to complete the assembly of the kit home acquired by Mr Lang and Ms Norton from Mr Tonny Bergqvist of Goldchill Pty Ltd trading as Eco Housing (Mr Bergqvist). Mr Lang and Ms Norton had agreed to pay Mr Bergqvist $213,591.76 on 28 August 2011 which included the sum of $40,000 plus GST for “Build cost estimate to lock up 30 days 3 men incl deck” Mr Edler carried out this work. As at 21 December 2011, Mr Lang and Ms Norton had paid Mr Edler 3 payments of $10,000 including GST. All 3 payments were paid as a advance prior to the work being performed by Mr Edler. Mr Lang and Ms Norton refused to pay the invoice for $7,000 allegedly because of dissatisfaction with some of the work and with other work alleged not completed.
The Evidence
At the hearing on 11 April 2011, Ms Norton, Mr Lang, Mr Jim Norton (Ms Norton’s father) and Ms Lorraine Cannell from Quensland Building and Construction Commission gave evidence for the Applicants. Mr Edler and Mr Bergqvist gave evidence for the Respondent.
Ms Norton gave evidence that she contacted Mr Bergqvist about purchasing and having an Eco House house erected on her land. She said the Mr Bergqvist stated that, as he was not licenced to erect the house, she could either do so herself as an owner builder or engage a builder to erect it. As Mr Lang and Ms Norton were wanting to save money, Ms Norton undertook the Owner Builder’s course on-line and obtained an Owner Builder’s licence to erect the house.
However, Ms Norton gave evidence that during the relevant period she was working full-time Monday to Friday from 8:30am to 6:30/7:30 pm. Mr Lang subsequently gave evidence that during the relevant period he was working full-time Monday to Friday from 7:15am to 3:00/6:00 pm.
Ms Norton gave evidence that Mr Bergqvist introduced them to Mr Edler, and despite denying in their application that they had contracted Mr Edler, she said in evidence that they contracted Mr Edler to build and supervise the assembly of the house. It became clear to the Tribunal from both parties that no written contract existed. The only written reference to a price is in the agreement between Mr Lang and Ms Norton and Mr Berqvist 28 August 2011 to which Mr Edler was not a party. This reference also clearly states that it is only a “Build cost estimate to lock up 30 days 3 men incl deck” but Mr Edler gave evidence that he was prepared to carry out this work and to honour the price of $40,000 plus GST.
Very few other aspects of “the contract” between Mr Lang and Ms Norton and Mr Edler were recorded in writing allowing both parties to dispute aspects of “the contract”. However, on 18 September 2011, Mr Edler emailed Mr Lang stating:
Tonny (Mr Bergqvist) advised me that payment regarding building cost will be covered by you direct to me. I will then cover payments to worker on site assisting in the erection and welding of your Eco House.
Total erection cost will be about $40,000 to lockup, which is the amount calculated by Eco homes (to be paid by progress payments).
I will then keep you informed of progress through weekly meetings or you can phone me after hours if you have any questions.
First progress payment required is $10,000 incl GST.
…
It is necessary for the Tribunal to turn to the evidence of Mr Edler as to what happened from there.
Mr Edler gave evidence that he pegged out the profile for the building on 13 September 2011 to assist Mr Lang and Ms Norton and at the hearing it seemed to the Tribunal that Ms Norton did not understand what a profile was or why it was necessary. Mr Edler said that he spent $900 on materials for the profile. Work then began on the assembly of the kit home on the site and Mr Edler provided the Tribunal with details of the jobs performed, by whom, and the hours each person worked. At the hearing he gave the Tribunal the rates paid or charged for each person employed on the job.
Despite requesting a summons that Mr Edler provide his time sheets he was not questioned by the Applicants about them at the hearing. The hours provided were for work performed up to and including 23 December 2011 when Mr Edler finished working on the site at Christmas eve and before this dispute commenced.
Applying the rates he provided, to the hours the Tribunal was able calculate the following:
Worker Rate Hours Amount Ralph 45 354 Peter 40 313 4520 Jeremy 30 113 3390 Brett 22 27 594 Alex 22 24 528 Isaac 22 24 528 Welder 45 22 990 Labour 10550 Materials 900 Claimable 11450 GST 1145 Total Claimable $12,595 Ralph 15930 GST 1593 Claimed by Ralph 17523 Total work performed $30,118
It is clear from Mr Edler’s evidence that he simply was not acting as a labourer, as he claimed, because he engaged other workers and tradesmen who he paid. The Tribunal, therefore, finds that he was acting as a building contractor.
As at 23 December 2011, Mr Edler had been paid $30,000, including GST, by Mr Lang and Ms Norton.
The Invoice No 170 for $7,000, like all previous invoices, was in advance for work to be carried out. As Mr Edler never did carry out that work, this claim must be dismissed.
At the hearing, Mr Edler conceded that the flashings had not been completed and the deck was not in place. He said that they had worked until Christmas eve but had run out of time. He estimated that the cost to complete the flashings was 3 hours by 2 men at $40 per hour amounting to $264 including GST. The cost to complete the decking was 3 to 4 days for 2 men at $40 per hour was therefore between $2,112 and $2,816 including GST. This cost can be addressed by Mr Lang and Ms Norton from the monies they still hold and those arising from the decision of this Tribunal.
The Tribunal finds that Mr Edler, on the basis of work performed as at 23 December 2011 had not overcharged Mr Lang and Ms Norton at that date, despite the fact that the flashings and deck remained to be completed.
Mr Edler’s lack of a licence under the Act
Mr Lang and Ms Norton at some stage, apparently after this dispute arose, discovered that Mr Edler did not possess a licence under the Quensland Building Serices Authority Act 1991 (now the Quensland Building and Construction Commission Act 1991 (the Act)).
Section 42 of the Act provides:
42 Unlawful carrying out of building work
(1) A person must not carry out, or undertake to carry out, building work unless the person holds a contractor’s licence of the appropriate class under this Act.
Maximum penalty—250 penalty units.
(2) However, subsection (1) does not apply to a person to the extent that the person is exempt under schedule 1A.
(3) Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so.
(4) A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed—
(a) is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and
(b) does not include allowance for any of the following—
(i) the supply of the person’s own labour;
(ii) the making of a profit by the person for carrying out the building work;
(iii) costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and
(c) is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and
(d) does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person’s own direct or indirect benefit.
Mr Lang and Ms Norton reported Mr Edler to the Queensland Building Serives Authority (QBSA) who fined Mr Edler $2,200 under section 42 for carrying our building work without a licence, which he subsequently paid.
Sub-section (2) is not relevant here. However, Section 42 Sub-section (3) applies but Mr Edler is entitled to reasonable remuneration for supplying materials and labour.
Applying the table above Mr Edler is entitled to claim the $12,595 he paid out for supplying materials and labour but is not entitled to claim the $15,930 claimed for supplying his own labour.
Mr Edler has been paid $30,000 by Mr Lang and Ms Norton, but he was not entitled to $15,930 under section 42 of the Act. Therefore, he is required to repay Mr Lang and Ms Norton the difference being the sum of $14,070.
Mr Lang and Ms Norton’s other claims
Mr Lang and Ms Norton’s claim for restitution was not seriously pursued at the hearing. No expert evidence was called to prove that any work was necessary to rectify the work and there was no evidence as to the cost of any rectification. This claim is dismissed for lack of evidence.
Mr Lang and Ms Norton’s claim that the alleged harrassment by text messages from Mr Edler cease was not pursued at the hearing. It is dismissed as it is not a claim within the jurisdiction of the Tribunal.
The Behavoiur of Ms Norton as an owner builder
Ms Norton gave evidence to the Tribunal that she was told by Mr Bergqvist that he was not licenced to assemble the house and to either do so as an owner builder or engage a builder. She then did an on-line owner builder course and obtained an owner builder permit.
Section 43D of the Act sets out the definitions for owner builders which Ms Norton should have been aware of from undertaking the course. In engaging Mr Edler, both she and Mr Lang gave evidence that they did not ask him if he had the appropriate licence under the Act. Section 43D states the following:
Division 8 Owner-builders
43D Definitions for div 8
In this division—
carry out, in relation to owner-builder work, means—
(a) carry out the work personally; or
(b) do both of the following—
(i) engage 1 or more licensed contractors to carry out building work;
(ii) provide building work services that would usually be carried out by a licensed contractor in the course of the contractor’s business; or
(c) do a combination of (a) and (b).
Examples of an owner providing building work services—
• directing licensed contractors how to perform building work
• coordinating the scheduling of building work by licensed contractors
• arranging for payment of subcontractors
The owner builder’s permit comes with conditions which are setout in section 44E as follows:
44E Conditions of permit
A permit is subject to the following conditions—
(a) the permittee must comply with this Act;
(b) the permittee may only carry out the building work as stated in the permit;
(c) if the permittee engages persons to carry out building work, the persons must be licensed contractors for the work;
(d) the permittee must not personally carry out building work for which an occupational licence is required;
(e) the permittee must not personally carry out fire protection work if the value of the work is more than the amount prescribed by regulation, or if no amount is prescribed, more than $1100;
(f) other reasonable conditions—
(i) the commission considers appropriate to give effect to this Act; and
(ii) stated in the permit.
From her own evidence, Ms Norton has failed to comply with the conditions of the owner builder’s permit. She also has failed to supervise the work as her evidence was that she was not on site at the relevant times. It also appeared to the Tribunal that she had little knowledge of what was required to undertake the assembly of this kit home.
For all of these reasons, the Tribunal finds that she should referred to the QBCC for investigation as to whether or not she should be prosecuted for breaches of the requirements of the owner builders permit.
ORDERS
Mr Ralph Edler is substituted for the Respondent named as Edlerindustries.
Mr Ralph Edler’s claim for $7,000 is dismissed.
Mr Ralph Edler shall pay Mr Lang and Ms Norton the sum of $14,070.
Mr Lang and Ms Norton’s claim for restitution is dismissed for lack of evidence.
Mr Lang and Ms Norton’s claim that the alleged harrassment by text messages from Mr Edler cease is dismissed as not within the jurisdiction of the Tribunal.
Ms Norton is referred to the QBCC for investigation as to whether or not she should be prosecuted for breaches of the requirements of the owner builder permit.
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