Metal Line South Brisbane Pty Ltd v Hajrudin Turcinovic t/as HNT Civil Building Construction Maintenance
[2011] QCAT 348
•29 July 2011
| CITATION: | Metal Line South Brisbane Pty Ltd v Hajrudin Turcinovic t/as HNT Civil Building Construction Maintenance [2011] QCAT 348 |
| PARTIES: | Metal Line South Brisbane Pty Ltd |
| v | |
| Hajrudin Turcinovic t/as HNT Civil Building Construction Maintenance |
| APPLICATION NUMBER: | BDL433-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Kate Buxton, Adjudicator |
| DELIVERED ON: | 29 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The application is dismissed. |
| CATCHWORDS : | Disputed invoice, variation, whether payable |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The parties are in dispute over invoice number 17467, issued by the applicant to the respondent on 30 June 2011 in the amount of $2,560.00.
The applicant had been engaged to perform roofing works for a residential project which the respondent was undertaking in Tarragindi. The claim is for payment of the sum of $2,560.00 which is said by the applicant to be owing by the respondent pursuant to the contractual arrangement between the parties. This claim can only succeed if either:
a)The works the subject of the invoice were included in the agreed original works for which the respondent is liable, but has failed, to pay; or
b)The works constitute an agreed variation which is enforceable by the applicant against the respondent.
The applicant contends for the second of these constructions, that is, a variation.
Each party has been given an opportunity to present their case in written submissions. It is common ground between the parties, according to that material, that the respondent issued a purchase order for the applicant’s works, number 1432, on 26 May 2010. That purchase order stipulated for the supply and installation of various roofing works, including the fascia and the (total) approved sum was $28,061.00. That amount has been paid and does not form part of the disputed invoice. This is therefore the agreed contract sum for the works, inclusive of the fascia. In order to recover any additional works these works would have to be variations which were approved by, and enforceable between, the parties.
The applicant supplied fascia to the site which measured 180mm in depth. Fascia of 240mm was required in order to cover the timber beams. The applicant states that 180mm was standard and that if 240mm fascia was required it should have been expressly specified by the respondent.
The main issue in contention is whether the drawings on which the Applicant’s quote was based specify 240mm fascia, as the respondent contends (and which therefore become a term of the contract) or whether, instead, it was reasonable for the applicant to supply a “standard” or “proprietary” sized product (of 180mm as they did) and for the applicant to recover any additional figure for a larger fascia.
Each party relies on the drawings as being supportive of its position. When turning to the drawings[1] it is unsurprising to find that they are inconclusive as to the fascia measurement. However, in circumstances where they were relied upon by the applicant in preparing a quote for the works, the question arises as to why the applicant did not seek clarity in relation to the precise measurements. It is clear from the material that the applicant did not do this.[2]
[1] See attachment to the respondents written submission filed 7 June 2011
[2] Paragraph 2 of the applicant’s submission filed 7 June 2011 - “in fact the drawings do not have any measurements for the fascia. This would indicate that the fascia allowance would be for a proprietary product which is what we quoted for and supplied.”
The material was also silent as to how much the claimed invoice is for labour and how much is for materials, whether any credit should be given for the labour quoted to install the 180mm product or whether the applicant recovered any amount for the unused 180mm product. In each of these respects the applicant’s material is deficient.
The invoice has been issued for works in addition to the agreed contract sum. The applicant can therefore succeed only if it can establish that the amount is an agreed variation. The evidence on this is equivocal at best. The applicant asserts that an oral variation was agreed and the respondent denies this and relies upon the fact that no further purchase order was issued as evidence of the strength of that contention. The statutory declaration of Mr Boyes, sworn 4 May 2011, is not conclusive either way as to whether the variation was agreed upon by the parties.
[10] This Tribunal cannot, therefore, be satisfied that the invoiced amount was an unpaid part of the original agreed works, nor that it was an agreed variation. The applicant needed to do more to produce compelling evidence that the respondent agreed to the additional payment, or that it was reasonable for the applicant to rely upon a conclusion inexorably drawn from the drawings, that 180mm fascia was all that was required. The evidence available to the Tribunal indicates that these conclusions are unlikely. This leaves the Tribunal with no choice but to dismiss the application for payment of invoice 17467.
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