Nicol v Mobile Project Building Pty Ltd - [2020] QCAT 125

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Nicol v Mobile Project Building Pty Ltd [2020] QCAT 125

PARTIES:
JOHN NICOL

KEITH STEWART

(applicants)

v

MOBILE PROJECT BUILDING PTY LTD

(respondent)

APPLICATION NO/S:

BDL317-18

MATTER TYPE:

Building matters

DELIVERED ON:

28 April 2020

HEARING DATE:

12 February 2020

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:
1.   Mobile Project Building Pty Ltd must pay John Nicol the sum of $19,380.74 by 4:00pm on 26 May 2020.

2.   The application by Keith Stewart is dismissed.

3.   There is no order as to costs.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS - VARIATION TO SUB-CONTRACT – where sub-contract to build double garage - where roof changed at request of homeowners during course of construction – where new roof more costly – whether sub-contractor entitled to recover extra cost from contractor – whether sub-contract varied

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266

GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50

Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11 110

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented

Respondent:

A Carroll, Carroll Legal & Compliance

REASONS FOR DECISION

This is an application brought by a sub-contractor, Mr Nicol, and the roofing sub-contractor engaged by Mr Nicol, Mr Stewart, against the contractor, Mobile Project Building Pty Ltd (‘MPB’). They claim money for work they did and expenses they incurred in building a double garage at a residential home at Herston. Mutaz Diab is the principal and sole director of MPB.
The dispute between Mr Nicol and MPB has arisen because, during the garage construction work, Mr Nicol at the request of Margaret Emerson, one of the homeowners, was asked if he could install an insulated roof as opposed to a colourbond roof. The insulated roof cost more than a colourbond roof (referred to by the parties as a standard roof).
The homeowners refused to pay for the extra costs associated with the change of roof. They did not agree to a variation of their contract with MPB and paid the contract price they say was owed to MPB under their contract with MPB.
There is now a dispute between Mr Nicol and MPB as to whether Mr Nicol is entitled to be paid for the extra costs he incurred in arranging for the installation of the new, more costly, roof. MPB refuses to pay for the extra costs on the basis that MPB and Mr Nicol had a fixed contract for the construction of a double garage and that there was no variation to that contract. Mr Diab says he did not authorise the change to the roof and that, in any event, he was told by Mr Nicol that the new roof would not cost any extra.
Mr Nicol said that Mr Diab approved the change of roof and stood by while the materials were ordered and delivered and the roof constructed. Mr Nicol denies having a conversation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nicol v Mobile Project Building Pty Ltd

Details

AGLC: Nicol v Mobile Project Building Pty Ltd [2020] QCAT 125
Case: [2020] QCAT 125
Decision Date: 28 April 2020

CaseChat Overview and Summary

The case of Nicol v Mobile Project Building Pty Ltd involved a dispute between John Nicol, a sub-contractor, and Mobile Project Building Pty Ltd, the main contractor, over the costs associated with a variation to a sub-contract for the construction of a double garage. During the course of the construction, the homeowners requested a change to the roof, which resulted in additional costs for the sub-contractor. Nicol sought to recover these extra costs from the main contractor, arguing that the sub-contract had been varied. Mobile Project Building Pty Ltd, however, denied any liability for the additional costs.

The legal issues in the case centred on whether the sub-contract had indeed been varied and, if so, whether the sub-contractor was entitled to recover the additional costs from the main contractor. The primary consideration was whether the change to the roof constituted a variation to the sub-contract and whether such a variation was agreed upon by both parties, either expressly or impliedly.

The court found that the change to the roof did constitute a variation to the sub-contract. There was evidence that the homeowners had requested the change, and the sub-contractor had proceeded with the new specifications. The court held that the main contractor was liable for the additional costs, as the variation was effectively communicated and acted upon by the sub-contractor. The court also determined that there was an implied agreement to vary the sub-contract to accommodate the homeowners' requests. Consequently, Mobile Project Building Pty Ltd was ordered to pay John Nicol the sum of $19,380.74 by the specified date.

The application by Keith Stewart, presumably another party involved in the proceedings, was dismissed. There was no order as to costs.

Orders

Orders of the court

1. Mobile Project Building Pty Ltd must pay John Nicol the sum of $19,380.74 by 4:00pm on 26 May 2020.

2. The application by Keith Stewart is dismissed.

3. There is no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.