MSN Shop & Office Fitting Pty Ltd v Cox t/a Gi Gi Beauty Clinic
[2010] QCAT 582
•23 November 2010
| CITATION: | MSN Shop & Office Fitting Pty Ltd v Cox t/a Gi Gi Beauty Clinic [2010] QCAT 582 |
| PARTIES: | MSN SHOP & OFFICE FITTING PTY LTD ACN 119 993 323 |
| v | |
| CONNIE COX trading as Gi Gi BEAUTY CLINIC |
| APPLICATION NUMBER: | BN059-09 |
| MATTER TYPE: | Building matter |
| HEARING DATE: | 7 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Jarro |
| DELIVERED ON: | 23 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | In accordance with s.77 of the Queensland Building Services Authority Act 1991, it is ordered that: a. the respondent pay to the applicant the sum of $10,728.18 within 28 days of the date of this decision; and b. the applicant is released from payment of the sum of $17,430.00 by the respondent. | ||
| CATCHWORDS : | Building dispute; shop fit-out; s. 77 of the Queensland Building Services Authority Act1991 and Queensland Civil and Administrative Tribunal Act 2009; reasonable price of work performed | ||
APPEARANCES and REPRESENTATION:
| APPLICANT: | MICHAEL PARKINSON, self-represented |
| RESPONDENT: | ROBERT ROSS, solicitor of Mortimer & Associates |
REASONS FOR DECISION
By application filed 20 July 2009 in the former Commercial and Consumer Tribunal, the applicant, MSN Shop & Office Fitting Pty Ltd, seeks payment by the respondent for the amount of $19,871.50 in full payment of invoice number 00000512 being for labour and materials supplied to the respondent at her request in relation to a shop fit-out at Q1 Surfers Paradise in order to establish Gi Gi Beauty Clinic.
Jurisdiction
In accordance with ss.9 and 10 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”), the Queensland Civil and Administrative Tribunal (“the Tribunal”) has original jurisdiction, including jurisdiction conferred upon it under an enabling Act. The enabling Act in the present instance is the Queensland Building Services Authority Act 1991. By virtue of s.77 of the Queensland Building Services Authority Act 1991, the Tribunal 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.
The Evidence
Michael Parkinson operates the applicant company. Mr Parkinson, whom I shall refer to as the “applicant” for convenience in these reasons, is a builder with approximately 20 years experience.
In January 2009, the applicant was contacted by the respondent’s daughter, Danielle Versac, in relation to a fit-out at Q1 for her mother’s business because the original shopfitter (known as Witbrook Office Interiors) was too expensive. The respondent was three months into a five year lease which commenced on 1 October 2008.
It is not contested that the applicant did most of the dealings surrounding the fit-out with Ms Versac as compared with the respondent, Connie Cox. Ms Versac had the authority to enter into negotiations on behalf of the respondent as the respondent was overseas for a large part of this matter.
According to the applicant, when he first discussed the fit-out with Ms Versac, he informed her that he would not be in a position to commence the fit-out until around mid-March 2009 because he was involved with another job. After going through the plans and pricing the fit-out, the applicant spoke to Ms Versac about a contract but the parties never executed a written contract. According to the applicant, the respondent and Ms Versac were hesitant about the price as it was not within their budget. The respondent asserts that the applicant never furnished the written contract despite repeated requests to do so. Notwithstanding this, the applicant commenced the fit-out without a signed written contract because according to him, the respondent and Ms Versac were eager for the job to commence as soon as possible in order to attempt to take some advantage of a rent-free period with the lessors of Q1. There was a six month rent-free period offered by the lessors of Q1.
The price for the fit-out was not agreed by the parties. The initial quote provided by the applicant (approximately $98,000) was higher than the amount budgeted by the respondent ($65,000). Discussions then ensued between the applicant and Ms Versac as to how the quote could be reduced. During those discussions, it was determined that a building approval and hydraulic plans would be required prior to the commencement of the job, and this would delay the commencement of the fit-out.
There were several meetings with Ms Versac on site to discuss the layout and the final price. The respondent and her daughter were anxious to commence work. No contract was signed nor a deposit paid. Notwithstanding this, the applicant purchased materials and constructed the ceiling frame and bulkheads. On completion of this, the sprinkler fitters were relocated and installed. According to the applicant, the respondent was happy with the work completed to date (being the ceiling frame and bulkhead) that she offered payment of a deposit. However, the respondent’s daughter, Ms Versac, stopped her mother from making the payment as the parties had not agreed on a total costing and no contract was in place.
It is the applicant’s practice to prepare a costing for any fit-out on a spreadsheet allowing for generally a 12% profit margin. He uses this spreadsheet for his own purposes. However, in this case, he showed the respondent the spreadsheet because the parties were eager to attempt to reduce the costings. He also gave them an opportunity to engage their own tradesmen for some items as Ms Versac’s husband knew various tradesmen.
Work continued in the form of the applicant obtaining 3 quotes on air-conditioning. He discussed this with the respondent who gave the go-ahead for the air-conditioning condenser to be mounted above the ceiling. After starting work on the ceiling, he discovered there were no power points supplied and no phone line to the tenancy. An electrician was engaged to fit the required power point to the meter board for temporary power. At that time, the applicant also got a quote for a 10-pair phone line from the main distribution frame to the shop.
After getting the power supply installed, the applicant framed and sheeted the ceiling throughout the tenancy. The applicant then had discussions with the respondent and Ms Versac to confirm the price so a contract could be printed for signature by the respondent. According to the applicant, there was “always an excuse why this couldn’t be done”. Ms Versac’s husband attended the job site on various occasions in order to help his wife and mother-in-law with the project.
Sometime in early May 2009, and against a background where the cost of the fit-out was not agreed, the respondent’s son-in-law telephoned and asked the applicant to meet in order to discuss progress. They met at Melba’s in Surfers Paradise. During this meeting, the son-in-law offered $20,000 cash as an incentive to complete the job for the respondent’s anticipated budget of $65,000 (making a total payment of $85,000). According to the applicant he did not accept the incentive.
By 5 May 2009, the fit-out was terminated. On that day, Ms Versac and the respondent’s son-in-law attended the premises and requested that all work cease and advised that payment for work completed would be made by Thursday of that week. According to the applicant, the respondent’s son-in-law was extremely aggressive and was throwing tools from the site. There was no work completed after the son-in-law’s demand to cease work and the applicant surrendered the keys at that point in time.
Under cross-examination the applicant indicated that he was aware of the budget of $65,000 but was not prepared to concede that the fit-out would be done for that amount. Instead, the $65,000 was to be used as a guideline.
When examined about the spreadsheet[1], the applicant indicated that the spreadsheet would keep changing, but he kept discussing the spreadsheet on most dates with Ms Versac. He said the spreadsheet was an estimate. He stated the spreadsheet is to be considered as a whole and it is not possible to simply select one item out of the spreadsheet and use it. He also indicated that there was no contract because the respondent tried to reduce the costs of the project. He and his offsider, Troy Listkow, were the ones involved with the job. There was never any written contract because the parties could not agree on the price.
[1] As referred to in [9].
Troy Listkow was called as a witness on behalf of the applicant. He has been working as a contractor for the applicant for the last five years. In his evidence, Mr Listkow indicated that in about December 2008, the applicant was first contacted about the fit-out at Gi Gi’s. According to Mr Listkow, the applicant was not excited to accept the job because of other commitments during that time, but Ms Versac kept ringing him and was anxious for the applicant to do the work. He relevantly stated that during the course of the work, there was constant harassment about the price and continual phone calls to the applicant from both the respondent and Ms Versac, regardless of which job site they were on. The applicant was continuously revising the price to try and get a contract in place. However, the respondent was never happy and money was always an issue.
According to Mr Listkow, the respondent’s son-in-law had been away in the early part of 2009 but when he returned, he started attending the job site on a regular basis and kept indicating that the applicant was trying to “rip [the respondent] off”. Mr Listkow was requested by the applicant to go to Melba’s in Surfers Paradise as the respondent’s son-in-law had requested a meeting. At that time, he witnessed a conversation between the applicant and the respondent’s son-in-law about the offer of $20,000 cash for the applicant to complete the job. Mr Listkow supported the applicant’s refusal to accept the offer.
Mr Listkow corroborated the events given by the applicant about termination of the fit-out in early May 2009 when the respondent’s son-in-law came onto the job site whilst they were working and told them to leave. The respondent’s son-in-law threw the tools out and refused to let them go back in to get unused materials paid for by the applicant. The son-in-law told the applicant that he would write a cheque to pay for work and materials purchased to date.
The applicant and Mr Listkow constructed the ceilings and bulkheads and set out the floors and walls with Ms Versac on three or four occasions. Mr Listkow screwed the tops and walls completely.
Under cross-examination, Mr Listkow conceded that the ceilings were almost complete except where people had to get access.
The respondent provided a written statement and gave evidence before the Tribunal. She stated that she entered into a lease for Shop 9 at Q1 in Surfers Paradise commencing 1 October 2008. Clause 21.1 of the special conditions of the lease provided that rent and outgoings for the first six months of the initial term were waived to allow for the shop fit-out. Clause 6 of the lease provided that the lessor’s written approval was required before any works were commenced. When seeking the lessor’s approval, detailed drawings and the requirements of all relevant local authorities including but not limited to a building approval, must be submitted to the lessor for consideration.
Much of the evidence provided by the respondent at the hearing was hearsay as she entrusted Ms Versac to oversee the fit-out and Ms Versac was the person who had direct conversations with the applicant. For instance:
a. The respondent indicated that towards the end of 2008, Bruce O’Neill of Mastertint, who knew the respondent’s daughter, provided her with the contact details of the applicant and advised her that he would be able to do the fit-out of the shop within the respondent’s budget of $65,000.
b. That on 14 January 2009, her daughter telephoned the applicant and requested that he do the fit-out of the shop. The applicant was advised that the budget for the total fit-out was $65,000.
c. A few days later, as Ms Versac had not heard from the applicant, she telephoned him and a verbal contract was formed when he advised that he would do the fit-out for a price of $65,000 including GST, and to meet the other conditions as requested. He advised Ms Versac that the fit-out would take about five weeks to complete. The applicant advised Ms Versac that his wife would prepare the contract.
d. On a date the respondent cannot now remember, but before the end of January 2009, the applicant telephoned Ms Versac and advised her that he would not be able to complete the fit-out until mid-March. He again advised the contract price remained at $65,000 including GST.
e. Through February and March whilst the respondent was overseas (and being towards to expiry of the rent-free period), the respondent’s daughter made numerous telephone calls to the applicant, many of which went unanswered, to establish when he was going to fulfil his contractual obligations. This was because Ms Versac had not received a contract or building approval. Further, no work had commenced. Whilst overseas, the respondent was becoming increasingly worried about these events.
f. On or about 9 April 2009, the applicant telephoned Ms Versac and requested an on-site meeting. At that meeting, he advised Ms Versac that he had a problem and that the contract price was $98,000. Ms Versac (and the respondent) were totally “shocked” about this development. The applicant said words to the effect: “Don’t worry, I will play around with the figures”. Ms Versac advised the applicant that as agreed previously, the maximum contract price was $65,000 inclusive of GST.
g. On Monday 4 May 2009, the applicant telephoned Ms Versac and said that the fit-out price would be $95,000. Ms Versac told her husband who was well aware of the situation, and handed him the phone as Ms Versac was in shock. The son-in-law terminated the verbal contract and instructed the applicant to do no further work and that he and his wife would meet the applicant on site the following morning to discuss reasonable payment of the partial fit-out up until 4 May 2009.
The respondent gave direct evidence that on or about 15 April 2009, the air-conditioning was installed into the shop. Ms Versac asked the applicant again about the contract and building approval. The applicant advised that he had a BA and provided a number 7799 and that his wife would get the contract to the respondent. By this stage, the frame for the bulkhead ceiling and part of high-level ceiling frame was installed to secure the air-conditioning.
After the air-conditioning and the framing for the bulkhead ceiling and a part of high-level ceiling framing were installed, the Project Manager (Aaron Woollams) for Q1 asked for the building approval to fulfil the lessee’s obligations under the lease. Mr Woollams further advised that the lessee would be in default under the lease and faced the lease being terminated if the obligations were not fulfilled. This did not eventuate.
On 5 May 2009, Ms Versac and her husband attended the shop to find that the applicant had totally disregarded the instruction the night before to do no further work yet steel wall frames and doorways and some, but not all, of the ceiling work was complete (save for some incidental screwing). The applicant was instructed to leave.
About a week later, Ms Versac telephoned Witbrook Projects and engaged them to complete the work for a higher price than the respondent budgeted for.
On 8 June 2009, the applicant forwarded an email to Ms Versac with a tax invoice seeking payment of $19,871.50 for work allegedly done in relation to the fit-out. She advised that she was not prepared to pay the invoice for the following reasons:
a. there was no written contract provided to her as promised;
b. there was no building approval obtained prior to the commencement of the fit-out as required under the lease;
c. the fit-out had not been completed within the time frame promised;
d. the verbal contract price of $65,000 including GST kept changing once the contract had been formed;
e. the verbal contract for $65,000 had been terminated on 4 May 2009;
f. the termination of the verbal contract was prior to most of the work undertaken as suggested by the applicant;
g. there were so many instances when the applicant attempted to take advantage of the respondent’s inexperience in these matters and gross inflation of prices by adding his 12% profit margin;
h. possible double-dipping of GST having been added twice to the account.
According to the respondent, Witbrook took photographs of the partial fit-out of the shop on 12 June 2009 prior to commencing its fit-out. The photographs identify that not all of the ceiling was installed by the applicant as his invoice claimed. The applicant applied and installed (but did not screw into the floor or ceiling) approximately 12 metres out a total of 20.5 metres of wall framing. Approximately 5 metres of the wall framing had to be removed and replaced with new framing because of the required set-out/positioning of the walls and the requirement for plumbing services to be accommodated in some of the wall cavities. Only the framing of the bulkhead for the air-conditioning access was installed by the applicant together with part of the high-level ceiling framing and plasterboard sheeting at the front of the shop. Additional ceiling hangers had to be installed by Witbrook to the existing ceiling framing to achieve structural integrity.
The building approval was given to the respondent on 17 June 2009 – the day Witbrook commenced its fit-out of the shop. The fit-out was completed by 24 July 2009 and Gi Gi Beauty Salon commenced trading on 27 July 2009.
But for the applicant’s actions, the respondent claims she lost the benefit of all of her six months rent-free period under her lease, and paid rent and outgoings for the shop for a period of 3 months and 11 days without receiving income of any kind. She filed a counterclaim for $17,430 seeking the equivalent of two months rent and one month’s loss of income because she was unable to operate her business during that time.
The respondent’s daughter, Danielle Versac, provided written and oral evidence before the Tribunal. In her statutory declaration sworn 24 February 2010, she recorded that she telephoned the applicant and was informed by the applicant that he could provide the fit-out within the budget of $65,000.[2] This is disputed by the applicant. So too were time frames and according to Ms Versac, the applicant indicated to her that he could commence the work in late February 2009.[3] That date was subsequently changed until about mid-March 2009. According to Ms Versac, she was eager for a contract to be drawn. The applicant informed her that his wife would draw the contract.
[2] Paragraph [5] of Ms Versac’s statutory declaration sworn 24 February 2010.
[3] Paragraph [5] of Ms Versac’s statutory declaration sworn 24 February 2010.
The applicant informed Ms Versac that the job would be completed in five weeks.[4]
[4] Paragraph [5] of Ms Versac’s statutory declaration sworn 24 February 2010.
Around 9 April 2009, the applicant then informed Ms Versac that there was a problem with the fit-out cost and the price increased to $98,000 exclusive of GST. Ms Versac started to cry and the applicant said he would “play with the figures”.[5] After this news, Ms Versac and her husband left the shop and attempted to seek a $20,000 loan from a bank.[6]
[5] Paragraph [8] of Ms Versac’s statutory declaration sworn 24 February 2010.
[6] Paragraph [9] of Ms Versac’s statutory declaration sworn 24 February 2010.
On 15 April 2009, the air-conditioning was in place and Ms Versac asked the applicant whether he had a building approval to commence the work as there was no contract or deposit given. The applicant apparently advised Ms Versac that he had a building approval (being BA 7799). At the time there was a bulk ceiling only.
Ms Versac informed the applicant to stop work on 4 May 2009.[7] The following morning when she attended the shop, further work was done.
[7] As opposed to Ms Versac’s husband.
On 12 May 2009, Ms Versac telephoned Witbrook Office Interiors in order to complete the work.
In her oral evidence, Ms Versac indicated that the landlord contributed $20,000 to the fit-out. On the day after termination, Ms Versac attended the shop and whilst frames were up, they were not screwed in. She indicated that she saw the shop the weekend before the applicant was told not to do any more work. She walked past the shop on a Sunday. She was certain it was a Sunday. However 3 May 2009 fell on a Sunday. It was 4 May 2009 when the discussion about termination took place. She turned up to the shop on 5 May 2009, being a Tuesday. This means that work could have been performed on the day of 4 May 2009, but prior to termination.
Aaron Woollams provided evidence. He was the Q1 Project Manager. His duties included the assessment and approval of all fit-out work for Q1. Fit-out documentation for Gi Gis undertaken by Witbrook Interiors was approved by his employer on 13 January 2009 (three months into the rent free period). The approved documentation and letter of approval was issued to the client on this day via email. The email indicated that the “lessor must obtain consents from the relevant authorities or bodies having jurisdiction prior to commencing any works”. This included building approval from a private certifier. He stated that the applicant provided a Building Approval Number BA7799 and an invoice from the private certifier via email on 26 March 2009 for the amount totalling $1,056. The applicant provided a quote to undertake the phone line installation via email on 29 April 2009 for an amount of $3,927. He was aware that the applicant did on-site work.
The applicant did not seek to challenge the written evidence of Bruce O’Neil from Mastertint. That evidence, by way of a statutory declaration sworn 3 June 2010, relevantly stated that Mr O’Neill telephoned the applicant and advised him to expect a call from either Danielle Versac or Connie Cox to do a fit-out for them for less than $65,000 as soon as possible. The applicant advised Mr O’Neill that he was in a position to help them and would contact them. He was advised then by Ms Versac that the applicant had agreed to do the shop fit-out. This evidence though does not go so far as to suggest that the applicant and respondent agreed on $65,000 to complete the fit-out. Instead it indicates that the applicant was aware of the respondent’s budget and that the respondent was eager for someone to start as soon as possible.
In addition to the above evidence, the respondent provided the following documentation pursuant to a Notice to Produce issued at the applicant’s request:
a. quote and final tax invoice from Whitbrook Office Interiors;
b. tax invoice for air-conditioning;
c. tax invoice for hydraulic engineer;
d. tax invoice for core hole drilling and slab x-ray; and
e. profit and loss statement for 2009/2010 Gi Gi Beauty Salon.
Issues for Determination
In my view, the principal issues to determine the claim involve the following:
a. whether the parties agreed on an amount in relation to the work requested of the applicant by the respondent;
b. what was the date of termination of the applicant’s fit-out;
c. what is the reasonable price for the work performed (this, of course, is a question of fact to be proved by the evidence of the market cost or value of the goods or services);
d. whether the applicant was aware of the terms of the six month rent-free period;
e. whether the respondent is successful in her counterclaim.
The standard of proof required to be met is on the balance of probabilities.
Findings
The parties appeared to give evidence to the best of their recollection but were very vague about dates and details of discussions between themselves. In general though I prefer the evidence given by the applicant and Mr Listkow over the evidence presented by the respondent and Ms Versac.
Having regard to the evidence presented and relied upon at the hearing, I make the following pertinent findings:
a. the applicant was approached by Ms Versac in mid-January 2009 where:
i.Ms Versac informed the applicant of the respondent’s budget of $65,000;
ii.there was no concluded agreement in relation to the cost of the fit-out and a price was not agreed between the parties despite the applicant being aware of the respondent’s budget;
iii.the applicant told Ms Versac that he would not be in a position to commence the fit-out until mid March 2009 because he was completing another job for a different client.
b. The respondent was anxious for the applicant to commence the fit-out and as such, the applicant became aware of the respondent’s six month rent-free period.
c. The respondent engaged the applicant in January 2009 (half way through the rent free period).
d. On 21 January 2009, the applicant took steps to obtain a building approval through Certis Building Certification. The building approval was not formally released until after the applicant’s work was terminated.
e. There was no written contract executed between the parties at any stage.
f. The applicant commenced actual work towards the fit-out in mid-late March 2009 as planned (or otherwise affirmed by the respondent).
g. On 29 March 2009 and upon request, the applicant provided building approval number BA7799 to the lessors of Q1.
h. The parties were unable to agree on a price for the fit-out however the applicant continued to work towards the fit-out.
i. The spreadsheet supplied by the applicant:
i.was an estimate of the total price of the fit-out;
ii.was shown to Ms Versac on at least one occasion to demonstrate the applicant’s costs involved with the fit-out;
iii.kept changing in order to attempt to obtain a consensus on the price of the fit-out.
j. The spreadsheet provides a guide for the Tribunal as to value of the applicant’s costs of the fit-out.
k. On 15 April 2009, air-conditioning was installed.
l. The applicant and Mr Listkow met with Ms Versac’s husband shortly prior to the respondent’s termination. They met Melba’s in Surfers Paradise where Ms Versac’s husband offered a $20,000 cash incentive to complete the fit-out within the respondent’s budget of $65,000. The applicant did not accept the incentive and the parties were still unable to agree on the price of the fit-out.
m. Thereafter and within a reasonably short period of time, the respondent terminated the applicant’s work.
n. No telephone discussion took place on the evening of 4 May 2009. In making this finding, I accept the evidence given by the applicant that the first notice of termination occurred when he and Mr Listkow were working towards the fit-out on the morning of 5 May 2009 when Ms Versac and her husband arrived at the shop. This is corroborated by Mr Listkow’s evidence. Ms Versac in her oral evidence stated that her husband had the conversation with the applicant on 4 May 2009. He was not called to give any direct evidence of this alleged telephone discussion with the applicant. I find it improbable that if the applicant’s work was terminated on the evening as asserted by the respondent, that he would then go to the shop and work overnight. Further Ms Versac gave evidence that she saw the shop the weekend before the applicant was told not to do any more work. She walked past the shop on a Sunday. She was certain it was a Sunday. However 3 May 2009 fell on a Sunday. It was 4 May 2009 when the discussion about termination took place. She turned up to the shop on 5 May 2009, being a Tuesday. This means that work could have been performed on the day of 4 May 2009, but prior to termination. Even if I am wrong on this finding, and there was a discussion on 4 May 2009, the evidence reveals that neither the respondent or her family members where in a position to verify the work the applicant performed up to the point of the alleged discussion.
o. In those circumstances, the respondent has otherwise accepted the applicant’s work between March 2009 and to the point where the respondent unilaterally terminated the applicant’s work (5 May 2009).
p. By that stage, the applicant performed work for the respondent for which he ought to be entitled to a reasonable price.
q. The applicant issued the respondent with invoice number 0000512 for $19,871.50 for the following work:
Organise power in tenancy 1 single point to power board
$280.00
Set out and build ceiling and bulk head
$8,100.00
Set out walls and build
$4,500.00
Organise sprinkler relocation
$5,185.00
Subtotal (excl. GST)
$18,065.00
GST
$1,806.50
Total
$19,871.50
r. The reasonable price for the work performed by the applicant is substantiated by Witbrook and otherwise enables the Tribunal to provide for a fair assessment of the work completed by the applicant towards the fit-out. That evidence demonstrates on the balance of probabilities that:
i.not all of the ceiling build was supplied and installed as identified in the applicant’s invoice (0000512);
ii.the framing of the bulkhead for the airconditioning access and part of the high-level ceiling framing and plasterboard sheeting at the front of the shop was installed (approximately 80%) however no plastering work was done;
iii.the applicant supplied and installed 12 out of a total of 20.5 lineal metres wall framing (58.5%) although approximately 5 metres was pulled down and replaced by Witbrook because of the required set-out/positioning of the walls and the requirement for plumbing services to be accommodated in some of the wall cavities;
s. Accordingly the reasonable price for the work performed by the applicant using the spreadsheet in light of Witbrook’s evidence is calculated as follows:
i.“Set out and build ceiling and bulkhead” – 80% of the item claimed in the spreadsheet (including the applicant’s 12% profit margin) - $2,867.20;
ii.“Set out walls and build” – 7 lineal metres at a rate per metre ($362.87) as calculated per the item claimed in the spreadsheet (including the applicant’s 12% profit margin) - $2,540.09.
t. In addition, the applicant is entitled to the claim for $280 to organise the power as this item was not challenged by the respondent and nevertheless has been proven to the satisfaction of the Tribunal. Further the applicant is entitled to $4,065.60 for the sprinkler relocation based on a 12% profit margin on the Wormald tax invoice (number 4861147) pre GST total of $3,630.
u. As such, I determine that the reasonable price of the work performed by applicant at the respondent’s request is $9,752.89 (exclusive of GST). Allowing for GST, the total is $10,728.18.
v. I find the respondent is not otherwise entitled to her counterclaim in circumstances where:
i.she, through Ms Versac, engaged the applicant approximately 3½ months into the six month rent-free period;
ii.she, through Ms Versac, was aware the applicant was not in a position to commence the fit-out until mid-March (towards the expiry of the rent-free period);
iii.she, Ms Versac and/or Ms Versac’s husband, condoned the applicant in the performance of his obligations towards the fit-out throughout March, April and early May 2009;
iv.she, through Ms Versac and her husband, unilaterally terminated the applicant’s obligations towards the fit-out;
v.the respondent’s loss was not demonstrated to the satisfaction of the Tribunal.[8]
[8]For instance, in the respondent’s written submissions, the respondent at 26(b) referred to a Statutory Declaration of James Baker. James Baker was not called on behalf of the respondent during the hearing to support the claim for loss of income over the relevant period claimed.
Order
In accordance with s.77 of the Queensland Building Services Authority Act 1991, it is ordered that:
a. the respondent pay to the applicant the amount of $10,728.18 within 28 days;
b. the applicant is released from payment of $17,430.00 by the respondent.
Costs
I invite the parties to make submissions as to costs within 14 days, failing which the order will otherwise be that each party will bear their own costs.
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