Mehrtens v Stega

CITATION: Mehrtens v Stega [2012] QCAT 176

PARTIES:	Mr David John Mehrtens (trading as Dave Mehrtens Constructions)
v
Mrs Sally Stega

APPLICATION NUMBER:   BDL439-10   

MATTER TYPE: Building matters

HEARING DATE:     4, 5 October 2011

HEARD AT:  Brisbane

DECISION OF: Mr Andrew McLean Williams, Member

DELIVERED ON: 30 April 2012

DELIVERED AT:      Brisbane

ORDERS MADE: I order that the Respondent pay to the applicant the sum of $51,921.74 within 28 days of the date of these orders.

CATCHWORDS : 

Residential Building Dispute – Entitlement or otherwise of the Respondent to terminate the contract for alleged non-completion – Calculation of completion date in light of agreed variations

Domestic Building Contracts Act 2000, s 18(4), 18(6)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr David Mehrtens, in person
RESPONDENT:	Mr Juris Stega, as appointed representative for Mrs Sally Stega

REASONS FOR DECISION

1. Mr David John Mehrtens (‘the Applicant’) trading as Dave Mehrtens Constructions, has been a registered builder for more than twenty years, holding a license issued to him by the Queensland Building Services Authority (QBSA). 

1. Prior to 7 November 2007, Mr Mehrtens conducted his operations as a sole trader, yet from that date (and then acting on advice from his accountant), Mr Mehrtens transformed his business model and commenced to trade by means of a family trust, termed the McKenzie Park Family Trust (“McKenzie Park”).

1. Mr Mehrtens is the sole trustee of McKenzie Park.  McKenzie Park was also registered for GST purposes on and from 7 November 2007.  By reason that it is not possible to register a family trust with the QBSA, Mr Mehrtens, in personam, remains registered as a builder with the QBSA. 

1. I have been informed in evidence (and now accept), that all invoices for construction works performed by Mr Mehrtens since the date of inception of McKenzie Park have been issued on letterhead entitled ‘Dave Mehrtens Constructions’, yet that these invoices also contain a clearly legible footer, that reads: “David Mehrtens as Trustee for the McKenzie Park Family Trust trading as Dave Mehrtens Constructions”. 

1. For reasons that will become apparent, the business structure selected by the Applicant is a matter to which I shall return, later in these Reasons for Decision.

1. At all material times the Respondent Mrs Sally Stega (whom was represented in these proceedings by her husband, Mr Juris Stega) was the owner of a waterfront home situated at 66 Fitzwilliam Street, Carrara. 

1. In about October/November 2009, Mr and Mrs Stega retained the services of the Applicant in order to construct a deck for them.  By the end of it, some time in mid November 2009, the Applicant was also asked by the Stegas to quote on a large renovation project at the same property.  The requested works were referred to by Mr and Mrs Stega as ‘stages two and three’, and these would see stage two of the renovation taken through to completion, and stage three taken to the “lock up” stage.  Stage one of the project had been performed by another builder, some…