MGF Master Painters Pty Ltd v Hankins - [2014] QCAT 662

CITATION:

MGF Master Painters Pty Ltd v Hankins [2014] QCAT 662

PARTIES:	MGF Master Painters Pty Ltd (Applicant)
v
Timothy Hankins (Respondent)

APPLICATION NUMBER:

BDL034-14

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

DELIVERED ON:

17 December 2014

DELIVERED AT:

Brisbane

ORDERS MADE:		Timothy Hankins pay to MGF Master Painters Pty Ltd the sum of $15,279.00 for claim plus $285.00 for costs within 7 days of the date hereof.
CATCHWORDS:	Building dispute – subcontract – failure to pay – alleged defective work – other matters before the Tribunal – failure of a party to abide by order of the Tribunal to file evidence – decision made on the evidence tendered.

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

The respondent is a builder and he entered into a building contract with owners of a property at 101 Norman Avenue, Norman Park. The building work was extension and renovation work. The respondent engaged the applicant, a painting contractor, to do work at the property.
The applicant quoted for painting work and it is not disputed the quotation was accepted by the respondent on or about 15 March 2013. The applicant says the applicant was also asked and agreed to do additional variation work.
The original agreed cost of the painting work was $23,980 which included GST. The variation work amounted to a further $4,422 including GST. The respondent has paid the applicant $13,123 and the claim of the applicant is for the balance of $15,279 outstanding.
The applicant commenced building dispute proceedings in the Tribunal on 18 February 2014 to recover the amount outstanding. The respondent filed a response on 24 April 2014. In his response the respondent admits the applicant’s engagement and the initial agreed cost of work, but disputes the variation work and that the applicant performed work in a good and workmanlike manner with due care and skill. In the response the respondent refers to a problem resolving an ongoing issue with the property owners about final payment in respect of the building work.
At a directions hearing on 3 July 2014 the Tribunal made directions as to the filing of the parties’ statements of evidence. The matter was also listed for a compulsory conference on 4 September 2014. Neither party complied with the order of 3 July 2014 in respect of the filing of statements of evidence. The respondent failed to attend the compulsory conference on 4 September 2014. The Tribunal made further orders as to the filing of statements of evidence at the compulsory conference. Item 6 of the order made on 4 September 2014 was to the effect that if the respondent did not file his statements of evidence and in particular a statement of evidence detailing the alleged defects and the costs associated with rectification with supporting evidence attached by 3 October 2014, then the matter would thereafter be determined on the papers on the basis of the material filed.
The respondent failed to comply with the order of the Tribunal made 4 September 2014. Accordingly the matter comes before me for final determination without further hearing based on the material filed to date. That material consists of the application and the response, a short submission by the applicant dated 19 September 2014 and an affidavit of Michael Flintham sworn 18 September 2014 and filed 19 September 2014 on behalf of the applicant.
In the response, the respondent Mr Hankins states he never agreed to pay for any variations. He says the work claimed by the applicant for variations was work necessary to rectify defects identified by the property owners. One of the reasons, he says, the property owners have not paid him is because of the defective painting work. Mr Hankins has filed no material to support those allegations.
The applicant relies upon an email from the respondent dated 2 April 2013 which states “Hi Michael this email is conformation (sic) that extra works to be carried out 101 Norman Ave for extra costs to original quote. Tim Hankins.” There is no mention in that email, which I accept was forwarded by the respondent to the applicant, of defective work on the part of the applicant.
There are three invoices associated with variations. They are dated respectively 10 April 2013, 29 April 2013 and 20 May 2013. There is no material before me indicating issue was ever taken by the respondent with these invoices prior to commencement of this action by the applicant. The respondent had ample opportunity to object that these invoices covered rectification of the applicants own defective work, not additional work, but it appears he said nothing about that at the time of invoice.
The applicant has tendered an email from the respondent to the applicant dated 29 August 2013 wherein it would be expected that the respondent would have raised an issue about defective work if there was defective work, but no mention of that was made. In fact he stated in that email that he had spoken to the certifiers and the form 21 was to be lodged the following day and then payment would be made (apparently by the owners). He goes on to say “Sorry for this delay but this is all out of my control and I am relying on other people. As soon as I have received payment I will be paying you.”
That email followed an email of 13 June 2013 where Mr Hankins referred to the saga continuing and referred to them, meaning Mr Hankins and the applicant, being paid.
No mention is made about defective work or that the variations were not additional work to which the applicant was entitled to be paid in any of the tendered emails.
Finally variation invoice 472 dated 10 April 2013 in the sum of $2123 was paid by the respondent, apparently without objection. I conclude the variations claimed involved additional work requested by the respondent. I conclude there is no issue about defective painting work between owners and the respondent. The respondent, it would appear, simply does not have the money to pay the applicant’s invoices.
There are a number of other actions before the Tribunal to which the respondent and owners are parties. One only is extant. The other is closed. Neither matter on its face has anything to do with the applicant or his painting work. I conclude that the applicant is entitled to recover the balance monies due under the original contract together with outstanding costs of additional variation work. That totals $15,279.
The applicant also seeks costs. No material has been filed establishing those costs. I note, this matter could well have been brought as a Minor Civil Dispute seeking recovery of a minor debt. Had that been done, no claim to costs could have been made. In the circumstances it is appropriate that the applicant recover costs limited to his filing fee only that is $285.