McCoy v Sloss
[2012] QCAT 60
•13 February 2012
| CITATION: | McCoy v Sloss and Anor [2012] QCAT 60 |
| PARTIES: | Neil McCoy |
| v | |
| Patricia Sloss Nigel Sloss |
| APPLICATION NUMBER: | BDL277-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 8 and 27 April 2011, 6 June 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mark Plunkett, Member |
| DELIVERED ON: | 13 February 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Mr McCoy pay the sum of $17,529.00 to Mr and Mrs Sloss by 4:00 pm on 12 March 2012. |
| CATCHWORDS: | Building – where contractor unlicensed –Prohibition on unlicensed Queensland Building Services AuthorityAct1991, s 42 |
APPEARANCES and REPRESENTATION:
APPLICANT: | Self represented Mr Neil McCoy |
| RESPONDENT: | Self represented Ms Patricia Sloss and Mr Nigel Sloss |
REASONS FOR DECISION
Jurisdiction
On 26 June 2009 (the Applicant) Mr Neil McCoy and Ms Patricia Sloss and Mr Nigel Sloss (the Respondents) entered into a contract in writing to find and relocate a moveable home to be fixed and set up as a permanent house at Nanango.
On 15 July 2010 the applicant filed a claim in the Magistrates Court at Brisbane together with a Statement of Claim seeking an order that the respondents pay the sum of $13,123.21 for damages for breach of contract plus interest.
The Statement of Claim alleged that the applicant, who provides consultancy and other services for the relocation of removable homes, entered into a contract on 26 June 2009 for the applicant to locate and remove a relocatable home to the property of the respondents, being Lot 22 Boonenne Court, Nanango.
On 5 August 2010 the respondents who entered a Condition or Notice of Intention to Defend made application to the Magistrates Court that the claim be transferred to the Queensland Civil and Administrative Tribunal (the Tribunal).
On 24 August 2010, pursuant to section 268(4) of the Queensland Civil and Administrative Tribunal Act 2009 the proceedings were transferred to the Tribunal.
The CCT has amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT now hears and decides all matters previously dealt with by the CCT: s 256 Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”).
Where matter to which the transitional provisions of the QCAT Act apply, QCAT has only the functions and decision making power that existed in the CCT: s 217 of the QCAT Act: Smith v Condie [2010] QCAT 365 Dr Bridget Cullen.
As observed by Justice Alan Wilson, President in Avenell v Oxygen Pools Pty Ltd & Anor [2010] QCAT 284:
[9] In its transitional provisions, addressing the disbandment of previous tribunals and their absorption into QCAT, the QCAT Act distinguishes between the final decisions of former tribunals, and pending proceedings before them at the time they ceased to operate.
[10] A pending proceeding, defined in s 245 of the QCAT Act, is an existing proceeding in the former Tribunal which that Tribunal had not begun to hear, or had begun to hear but in which it had not started to consider the evidence for the purpose of making its final decision. Those proceedings are taken to be proceedings before QCAT, with which it has jurisdiction to deal: s 256.
In accordance with ss 9 and 10 of the QCAT Act QCAT has original jurisdiction, including jurisdiction conferred upon it under an enabling Act.
[10] The enabling Act in the present instance is the Queensland Building Services Authority Act 1991.
[11] By virtue of s 77 of the Queensland Building Services Authority Act 1991, the QCAT has the power to resolve the dispute in issue and can, inter alia, order the payment of an amount found owing by one party to another, or, order relief from payment of an amount claimed by one party from another: MSN Shop & Office Fitting Pty Ltd v Cox t/a Gi Gi Beauty Clinic[2010] QCAT 582, Member Jarro at [2]; Bach v Majestic Pools & Landscapes Pty Ltd [2010] QCAT 581, Senior Member Kerrie O’Callaghan at [21].
[12] Relevantly, by s 77 of the Queensland Building Services Authority Act 1991, it is provided as follows:
“77 Tribunal may decide building dispute
(1) A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal decide the dispute.
(2) Without limiting the tribunal’s powers to resolve the dispute, the tribunal may exercise 1 or more of the following powers--
(a) order the payment of an amount found to be owing by 1 party to another;
(b) order relief from payment of an amount claimed by 1 party from another;
(c) award damages, and interest on the damages at the rate, and calculated in the way, prescribed under a regulation;
(d)order restitution;
(e) declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice;
(f) avoid a policy of insurance under the statutory insurance scheme;
(g) order rectification or completion of defective or incomplete tribunal work;
(h) award costs.”
[13] Hence QCAT has jurisdiction in “building disputes” under s 77 of the Queensland Building Services Authority Act 1991 (French v NPM Group Pty Ltd [2008] QSC 48; Callum Constructions v Anderson [2011] QCAT 37, Member Ms Forbes at [2]; and respect to the former Tribunal see: Skaines v Kovac Enterprises Pty Ltd[2006] QSC 120, Fryberg J Fraser Property Developments Pty Ltd v Sommerfeld & Ors[2004] QSC 363, Dutney J).
[14] By definition in Schedule 2 and s 4 of the Queensland Building Services Authority Act 1991:
“building dispute” means a domestic building dispute;
“building contractor” means a person who carries on a business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor;
“domestic building contract” means a domestic building contract under the Domestic Building Contracts Act 2000;
“domestic building dispute” means:
(a) a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work;
(b) a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; or
(c) a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries;
“domestic building work” see the Domestic Building Contracts Act 2000, schedule 2;
“reviewable commercial work” means tribunal work other than reviewable domestic work;
“reviewable domestic work” means domestic building work under the Domestic Building Contracts Act 2000, except that for applying section 8(8) of that Act, the definition excluded building work in that Act is taken not to mean anything mentioned in paragraph (b), (c) or (d) of the definition.
[15] By s 7 of the Domestic Building Contracts Act 2000:
“A domestic building contract” is:
(a) a contract to carry out domestic building work; or
(b) construction management contract under the Queensland Building Services Authority Act 1991 for the provision of building work services for domestic building work; or
(c) another contract to manage the carrying out of domestic building work.
[16] By s 8(3) of the Domestic Building Contracts Act 2000:
“Domestic building work” includes--
(a) work (associated work) associated with the erection, construction, removal or resiting of a detached dwelling; and
(b) work (associated work) associated with the renovation, alteration, extension, improvement or repair of a home
(4) Without limiting subsection (3), associated work includes--
(a) landscaping; and
(b) paving; and
(c) the erection or construction of a building or fixture associated with the detached dwelling or home.
Examples of buildings and fixtures for subsection (4)(c)--
retaining structures, driveways, fencing, garages, carports, workshops, swimming pools and spas
Prohibition on unlicensed contractors
[17] Relevantly, s 42 of the Queensland Building Services AuthorityAct1991 provides:
42 Unlawful carrying out of building work
(1) A person must not carry out, or undertake to carry out, building work unless that person holds a contractor's licence of the appropriate class under this Act.
(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.
The applicant’s case
[18] Mrs Sloss of the respondents is the registered proprietor of 22 Boonenne Court, Mills Way, Nanango.
[19] On 26 June 2009 the applicant and the respondents entered into an agreement (the Agreement).
[20] The parties to the agreement are Patricia Garzon and Nigel Stanley Sloss and Neil McCoy of Oz Developments Pty Ltd.
[21] The Agreement is a simple one page document essentially consisting of three paragraphs.
[22] By the first paragraph it was agreed that the applicant will provide his services to locate and remove to the premises a large existing home or possibly two smaller homes, complete the renovations and/or additions to the existing homes, arrange connection of the homes to Council services and to meet Council requirements to enable the premises to be let out or sold.
[23] By the second paragraph of the agreement the premises and all related costs are to be paid in full by Mrs Sloss and any monies paid by the applicant in relation to the premises are to be to him by her within seven (7) days of any invoice received from him.
[24] In the third paragraph of the agreement the applicant was to receive from Mrs Sloss the following for his services:
a)an hourly rate of $40.00 (including travelling);
b)car use of 0.75c per km;
c)motor vehicle fuel costs as per receipts;
d)petty cash as per receipts;
e)accommodation costs as per receipts;
f)phone calls as per invoice;
g)any other costs as per receipt or invoice.
[25] It was further provided that the applicant was to invoice Mrs Sloss for the above expenses each Friday and the invoice amounts were to be paid by her within seven (7) days.
[26] The applicant first met Mrs Sloss in 2007. In April 2009 the applicant said that Mrs Sloss had telephoned him and asked him to meet her regarding a vacant block of land she owned at the Nanango site. On 5 May 2009 the applicant met with Mrs Sloss at her home to discuss the project. On 11 May 2009 they went together to Nanango to inspect the block of land and to have discussions with the Nanango Shire Council about what home was suitable for that block. The applicant stated that Mrs Sloss asked him to search for a removal home that could be suitable for this block of land. The applicant obtained a home in Brisbane which was owned by Atlas House Removers and Stumpers. On 26 June 2009 the applicant entered into the Agreement referred to above.
[27] The applicant stated that the respondents asked him to prepare a budget for the cost to have Atlas remove the home to Nanango, together with associated costs for trades persons to complete the home to Council’s specifications. He said this was done in order for them to formalise their loan with a bank or other source of finance.
[28] The applicant stated that he told the respondents that the budget was an estimate only and he had no prior knowledge of:
a)the costs involved in moving a home to Nanango;
b)the local Nanango Council costs;
c)the costs of a local builder, and
d)local materials would also cost.
[29] The applicant advised the respondents to apply for a loan of $150,000.00.
[30] On 2 July 2009 the applicant went to the Nanango Council with the plans for the house to determine the local requirements before the respondents signed a contract to purchase the removal home. The applicant stated the Council was satisfied with the proposed home sought to be removed to the block.
[31] On 2 July 2009 the applicant met with the owner of Sungold Constructions, a quality builder that he had known for some time.
[32] On the same day, the applicant met with the respondents in Brisbane to advise them that he had met with the Nanango Council, had found a home suitable for the area and had met with a representative of Sungold Constructions regarding all the finishing off work on the home and to collect the holding deposit from them for the removal home. At that stage, the applicant says that the respondents were unable to pay the deposit.
[33] Accordingly, the applicant states that on 3 July 2009 he signed the agreement to purchase the removal home in his name and pay the deposit himself. After the respondents had obtained finance, the applicant stated that he sold the home to the respondent.
[34] From 23 May 2009 to 13 January 2010 the applicant presented the invoices to the respondents as they arose.
[35] On 9 January 2010 the respondents inspected the home and according to the applicant were satisfied with it. At the time of inspection the applicant stated that the respondents agreed for the installation of air conditioning and a carport.
[36] The applicant’s claim is based upon the last invoices which were presented to the respondent on 31 March 2010 in the amount of $12,008.64 and an invoice dated 30 April 2010 in the amount of $1,114.57. In his claim he seeks payment of this money plus interest as being outstanding and due to him pursuant to the contract agreement.
[37] The applicant said that he did not charge the respondents for over 100 hours of office work relating to the project as well as not charging them for his initial trip to Nanango with Mrs Sloss and numerous other trips he had made to Brisbane to meet with the respondent.
[38] As to the claim that he was not entitled to his monies pursuant to section 42(6) of the Queensland Building Services Authority Act 1991, the applicant stated that all building work was carried out in partnership with other people who were licensed to carry out building work and set out a list which included Atlas Home Removals and Restumping, Sungold Constructions, plumbers, drainers, electrical contractors and a builder.
[39] The applicant stated also that the respondents received $15,000.00 in bond money back from the Nanango Shire Council. He also said based on anecdotal material from a local real estate agent that the property was now worth $285,000.00 compared to a sale across the road.
The respondents’ case
[40] The respondent said they met the applicant through a relative. She said that they discussed placing a home on her property in Nanango because she knew he had experience in property development and a similar project for himself on Russell Island.
[41] Mrs Sloss said that the applicant advised them that the project could be done for approximately $100,000.00. However, he recommended they take out a loan of $150,000.00 to draw on as required.
[42] It was after visiting the site, the Council, and after three or four meetings at their home, that the respondent said that agreed to engage the applicant for the project and he began searching for a suitable house for the site. They concurred that the agreement of 26 June 2009 set out the legal relationship between the parties.
[43] The respondents said the first payment was made on 27 July 2009 in the amount of $41,800.00, being a 50% deposit on the removal home which the applicant had secured from Atlas House Removals and Restumpers at Yatala. The respondents stated that in August 2009 the applicant provided them with a budget for the project. This itemises various costs totalling $100,000.00. It also contemplated an amount of $14,000.00 from the first home owners grant and a refund of $7,600.00 GST on the home purchase would offset total costs of the relocation and set up of the home.
[44] The respondents stated that by the end of October they had paid to the applicant $110,000.00 with a lot more work still outstanding.
[45] By a revised budget dated 31 October 2009, with the first home owners grant having been boosted to $21,000.00 was costed out again at $100,000.00.
[46] The respondents conceded that many increases in costs were due to Council requirements and the building certifier’s strict application of the regulations.
[47] However, they complained about the under-estimation for the applicant’s own labour and mileage amounting to $41,000.00 paid including GST.
[48] On 8 February 2010 the respondents made their last payment. In all they had paid over $167,240.02 to the applicant.
[49] In February 2010 the respondents were dismayed to discover that they were not entitled to the first home owners grant or the GST as mentioned above.
[50] In April 2010 the applicant delivered his last invoice for $12,008.64. At this point in time the respondents requested to see ten original invoices from Atlas House Removals and Restumping to verify some of the earlier payments to Oz Developments.
[51] While these were provided to the respondents, they discerned what they submit are anomalies and differences to those which are in the original. They claimed that eight (8) of the invoices were not genuine.
[52] The respondents also submit some costs to have been fabricated and that they were overcharged by the applicant.
[53] The respondents are disturbed to have discovered that the house they paid for had been advertised on line for $75,000.00 but purchased for them for $84,700.00.
[54] As a result, the respondents refuse to pay the last account. Further, they did not pay the account for $1,114.57 dated July 2010 as they state they did not receive it.
[55] In July 2010 they learnt that the applicant did not have a BSA License. On 26 July 2010 they brought this to the attention of the Building Services Authority conducting the investigation.
[56] The respondents reject the version of events outlined by the applicant that he had told them that he was working in partnership with Sungold Constructions Pty Ltd (of Woodford), which was a licensed builder. The first the respondents say they learnt of Sungold was in November of 2010 when the applicant made this claim. The respondents gave evidence that Sungold Constructions had nothing to do with the contract/agreement and did not engage any building work for them at all. The respondents did agree that the applicant had told them that he would work with a builder but this changed when he told them the builder had sustained an injury. All parties agreed that the applicant was to engage a carpenter in the area to complete works.
[57] The total amount charged by the applicant was $180,721.18. The respondents complained this is far and above the original $100,000.00 budget that had originally been estimated.
[58] The house as Nanango is completed and the respondents expressed satisfaction with the workmanship. It has now been fully tenanted.
[59] The respondents dispute the valuation of the applicant and say that they had been advised by a local real estate agent that it could only be advertised for $185,000.00 which they complain is well below the $285,000.00 projected valuation represented by the applicant.
[60] The respondent submitted that their main complaint is the excessive amount of money the applicant has claimed, most of which they had already paid, which was “wrongfully and deceptively claimed in many instances and well in excess of the budgets which were meant to give us a guide as to costs”. Some of the extras not included in the budget were:
a)Council inspection fees: building $440.00
b)Council inspection fees: plumbing and sewerage $590.00
c)House escort fees $324.50
d)House height $2,000.00
[61] The gravamen of the respondent’s complaint is that they paid $167,240.00 for works which were estimated to be $100,000.00.
[62] It is common ground that at all material times neither the applicant or Oz Developments Pty Ltd were licensed under the QBSA Act. It is clear the applicant holds no license to carry out works required under the Queensland Building Services Authority Act 1991.
[63] The Tribunal finds that the work undertaken by the applicant for the respondent was within the definition of “building work” in the QBSA Act.
[64] By reason of s 42(1) of the QBSA Act the applicant’s works were:
a)within the definition of "building work"; and
b)were works for which a contractor’s licence was required.
[65] Accordingly, the prohibition in s 42(3) against any entitlement in respect of unlicensed work applies so as to disentitle the applicant for his labour and any profit and he is limited to an application for reasonable remuneration, within the parameters of section 42(4) as the only method available to entitle him for any remuneration at all.
[66] In such circumstances the respondents say they are entitled to repayment of the overpaid amounts from the applicant. Further, or in the alternative, the respondents say that in any event, pursuant to the agreement, the total cost of the works should have been $100,000.00 and as such, the respondents have overpaid the sum of $67,240.00 to which they are entitled as a refund.
[67] Building work said to have been performed by the applicant included:
a)directly or indirectly causing building works to be carried out;
b)providing administrative, advisory, management or supervisions services in relation to building i.e. building work services;
c)entering into a contract or offering to carry out building work;
d)receiving payments, paying or arranging payment of sub-contractors;
e)arranging labour and materials;
f)arranging and conducting on-site meetings and inspections;
g)preparing of plans and specifications;
h)coordinating the scheduling of works by building contractors, including as an agent of another person;
arranging for certificates from government agencies etc;
j)arranging for the erection, construction, renovation, alteration, extension, improvement or repair of a building;
k)organising the provision of lighting, heating, ventilation, air conditioning, water supplies, sewerage and drainage in connection with a building; and
l)organising building inspection reports.
[68] The respondents asserted that a company that is the principle contractor will be deemed to have carried out building works even where the work is carried out under a subcontract and another licensee. They refer to what they described as explicit evidence in the contract between them and the applicant to demonstrate his involvement in building work which stated, “will provide his services to... complete renovations and/or additions... arrange connection... to Council services, and meet Council requirements”.
[69] The respondents make reference to the invoices issued by the applicant and the detail identified a series of building works carried out.
[70] By letter dated 7 February 2011, the Building Services Authority wrote to the applicant advising him that they had decided to issue infringement notices to Oz Developments for unlicensed contracting.
[71] By the definition of the QBSA Act, Schedule 2, the building works means contract administration carried out by a person in relation to the construction of a building designed by the person (fa) and carrying out site testing and classification in preparation for the erection or construction of a building on the site (h).
[72] The respondents produced a detailed and itemised list of actual payments (Exhibit 9).
[73] The evidence demonstrated that all of the invoices were issued in the name of Oz Developments Pty Ltd at PO Box 1170, Nerang, Queensland, 4211. Each invoice had attached to it all of the receipts for building supplies and labour provided.
[74] From Exhibit 9 it can be seen that all of the broad heads of budget and payment were for materials and the labour of tradespersons (except that which is ascribed to Oz Developments, being the applicant’s labour) which was budgeted for $21,000.00 and for which an actual amount was paid by the respondents in the sum of $48,730.09.
[75] The respondents gave a breakdown of the $48,730.09 for labour rounded off as follows:
i) Labour $24,820.00
ii) Mileage $12,536.95
iii) Fuel and other associated costs $6,951.67
iv) GST $4,439.58
[76] The invoice upon which the applicant mounts his case issued on or about 31 March 2010 in the amount of $12,008.64, included in it an amount of $6,700.34 for labour, materials, travel, accommodation etc. The balance of the invoice was for materials and labour associated with construction of trades persons. This invoice contained eleven (11) items as follows:
a)Oz Developments: Labour, materials,
travel, accommodation etc $6,734.00
b)Electrical: Labour, materials and fees $395.90
c)Tiler (balance labour and materials) $165.00
d)Carport $1,999.1
e)Air conditioner $1,350.5
f)Lino laundry $298.00
g)Replace broken glass $72.00
h)Gas fitter $1,684.45
Carport – builder $1,540.10
j)Electrical – air conditioner $409.75
k)Refrigeration – air conditioner $440.00
$13,208.64
Less rebate insulation $1,200.00
Total $12,008.64
[77] The evidence is clear that, in carrying out the domestic building works on the respondents’ site, the applicant acted in contravention of section 42 of the QBSA Act.
[78] By operation of section 42(4)(b) of the QBSA Act, the applicant is expressly not entitled to claim any allowance for the supply of his own labour or the making of a profit by reason of his having carried out the building work: Cant Contracting P/L v Casella & Anor [2006] QCA 538 at [10].
[79] This is so even though it can be seen that the respondents gain as a result of his enterprise and considerable input as has occurred here, but there are entitled to it.
[80] In Zullo Enterprises Pty Ltd v Sutton [2000] 2 Qd R 196 the Court of Appeal did not allow a claim based on unjust enrichment because s 42 of the Queensland Building Services AuthorityAct1991 not only made the contract unenforceable but also expressly prohibited its making and any work purported to be done under it. McPherson JA stated:
“It is perhaps not necessary here to reach a final conclusion about the question. This is not an instance in which the legislation has left to implication the question whether the contract, if performed in breach of the statutory prohibition, is unenforceable by the person performing or carrying it out. Section 42(3) expressly provides: “A person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so”. Quite plainly, the prohibition in s.42(3) prevents a person so carrying out the building work from recovering the contract price or any part of it. Considered either alone or in combination with s.42(1), I would regard it as also preventing such a person from recovering damages for breach of the contract. The only question here is whether, in addition, it precludes the party carrying out the work from recovering restitution, or what was formerly called a quantum meruit, for the work done. As to that question, I continue to adhere to what I said in Marshall v. Marshall (Appeal No. 9365 of 1996, 28 October 1997). Perhaps no one will be surprised at that. However, for the reasons given on that occasion, I consider that what the respondent is seeking to recover in this action is “any monetary consideration” to which, because of his contravention of s.42(1), he is “not entitled”. He is not entitled to it under the contract, and that is so whether his claim is laid in debt, or damages, or to recover the market value of his services under an agreement to pay him whatever his work was and is worth. Equally, however, and for the reasons given in more detail in Marshall v. Marshall, he is not entitled to recover it outside the contract as a restitutionary compensation for the work he has done. In whatever form the claim is framed, the amount in question is a “monetary consideration for” his doing or having done the work, and so falls within the exclusion in s.42(3) as being something to which a person carrying out building work in contravention of s.42(1) is “not entitled” in the sense of his having in law no right or title to it. Monetary “consideration” is what a person receives, or is entitled to receive, in return for his or her doing work in the expectation of being paid for it. Similarly, in Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (2010) 26 BCL 172 the Queensland Supreme Court of Appeal re-affirmed that the effect of the words used in s 42 of the Queensland Building Services AuthorityAct 1991 prohibited a quantum meruit claim. Keane JA stated: “Section 42 of the Act exhibits a clear intention to render illegal both the making and the performance of a contract by an unlicensed builder insofar as building work is concerned. Section 42(3) makes it clear that the consequence of a contravention of s 42(1) by an unlicensed builder is that the builder is unable to recover payment for unlicensed building work. Those consequences include the recovery of payments made to the builder by the other party to a contract for unlicensed building work.”
[81] Section 42(4) provides that the remuneration that an unlicensed builder can claim in relation to works performed is limited to that listed in sections 42(4)(a)-(d) of the QBSA Act.
[82] The only remuneration which the respondent is entitled to receive in relation to the works is the amounts paid in relation to the materials and labour for carrying out the works.
[83] One can understand the respondents’ dissatisfaction of the not insignificant costs over runs and the disappointment of the failure to obtain the home owners grant such that the total costs of the project substantially exceeded estimates.
[84] After carefully examining the evidence of the parties, the Tribunal is not satisfied that any of the claims for any item is fabricated or overstated by the applicant.
[85] The respondents have failed to prove their claim that any item of the materials and labour were not provided or performed.
[86] The Tribunal finds the applicant has proven his claim for the outstanding amounts less labour to which he is not entitled.
[87] However, it is plain that the respondents have paid a total of $24,820.00 for the work of Mr McCoy (paid at his direction to Oz Developments) to which he was not entitled by reason of section 42 of the QBSA Act.
[88] The Tribunal finds the respondents are entitled to a refund of labour costs charged by the applicant.
[89] Of the invoice of 31 March 2010, there is $5,308.30 for the cost of materials and the cost of other person’s labour for which Mr McCoy, in the Tribunal’s view is entitled to judgment. The balance of the invoice of 31 March 2010 is made up of $6,700.34 for “Labour, materials, travel and accommodation”. The Tribunal is inclined to disallow all of the claim for $6700.34, but this would necessarily include amounts for which the applicant is entitled to claim being expenses other than labour. The Tribunal is prepared to give half the amount for non-labour costs of one half based on the invoices already issued and paid for where the respondents calculated that of the amount of $48,730.09 claimed only $24,820.00 was labour with balance being mileage, fuel and other associated costs.
[90] Nothing was provided by the parties in respect to the claim by the applicant for the last stated invoice said to be in the sum of $1,114.57. Accordingly, it is not possible to discern whether that represents any amounts for which Mr McCoy is entitled to claim by way of materials and the labour of trades persons.
[91] In the result the Tribunal will allow the allow the applicant’s claim:
a) in the Invoice dated 31 March 2010:
i) $5,308.30 for materials; and
ii) $3,350.17 for materials, travel and accommodation; and
b)for all of the invoice dated 30 April 2010 in the amount of $1,114,57.
[92] In the result the Tribunal upholds the claim of the applicant and orders the applicant to pay the respondents the sum of $9,773.00.
[93] The Tribunal disallows the claim for interest as no rate is stipulated in the agreement.
[94] The Tribunal upholds the counter claim of the respondents in respect of the repayment of labour which the applicant was not entitled in the amount of $24,820.00 plus $2482.00 GST.
[95] The order of the Tribunal is that the applicant pay to the respondents the sum of $17,529.00.
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