Osborne v Gledhill
[2021] QCAT 157
•5 May 2021
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Osborne v Gledhill [2021] QCAT 157
PARTIES: PENELOPE JANE OSBORNE (applicant)
v
AARON GLEDHILL (respondent)
APPLICATION NO/S:
BDL044-20
MATTER TYPE:
Building matters
DELIVERED ON:
5 May 2021
HEARING DATE:
11 March 2021
HEARD AT:
Brisbane
DECISION OF:
Member Gardiner
ORDERS:
1. Aaron Gledhill pay to Penelope Jane Osborne the sum of $4,000.00 within 14 days of the date of this order.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – where claim for defective or incomplete work – where lack of evidence of defective building work sufficient to establish breach of agreement, breach of duty, causation and quantum
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28
Briginshaw v Briginshaw (1938) 60 CLR 336
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
Penelope Osborne claims that building work undertaken by Aaron Gledhill on her property was defective and incomplete. She claims repayment of an excess deposit of $3,150.00 she says was paid by her, rectification costs of $6,275.00 and costs of $2,938.58. Mr Gledhill seeks to have Ms Osborne’s claim dismissed with costs.
The Scope of the agreement
Ms Osborne says she engaged Mr Gledhill to construct a pergola around her home. Mr Gledhill holds a QBCC carpenter’s licence.
The pergola was to have an iron roof. On his sworn evidence at the hearing, this was not what Mr Gledhill thought he was engaged to do.
Mr Gledhill provided an “estimate” dated 18 November 2019[1] saying the “estimated” price would be $8,500 paid in cash. The “estimate” states the works to be completed were to supply new steel posts, supply labour to complete the pergola and remove rubbish from the site.
[1]Exhibit 3 Appendix “A”.
In his oral evidence to this Tribunal Mr Gledhill stated again on oath, he understood this to mean erecting the posts and installing a head rail. He says he understood Ms Osborne to be covering the top with a shade cloth cover.
Ms Osborne gave evidence, also on oath, that she understood Mr Gledhill to be building the pergola, roofing it with roofing iron and installing guttering.
The “estimate” provided to support the works gives me no assistance in deciding what was contracted between the parties. It is short on detail and open to interpretation to support either version of the agreement.
No formal minor works contract was signed between the parties. Mr Gledhill says he handed such a document to Ms Osborne on a date not disclosed[2] but Ms Osborne refused to sign it. In her oral evidence, Ms Osborne says no contract was offered.
[2]Exhibit 8 para 8.
Mr Gledhill took out no statutory insurance cover on this project.
Payments
Mr Gledhill says no deposit was paid. He says that if it was paid, he would have issued a receipt.[3]
[3]Exhibit 8 para 11.
Ms Osborne says she paid Mr Gledhill $4,000 in cash in two envelopes each containing $2,000 on 4 December 2019. Ms Osborne’s son supported this evidence saying he helped his mother count the money the Saturday before and was at the property when the money was handed over.[4] She says Mr Gledhill demanded a 50% deposit.
[4]Exhibit 9.
Ms Osborne says the money was made up of a gift of $2,000 from her mother. This is evidenced by a statutory declaration from Ms Osborne’s mother.[5]
[5]Exhibit 3 page 21.
Ms Osborne further produces bank statements showing bank withdrawals of cash of amounts of $900 (twice)[6] on 14 November and 29 November 2019 and $350 and $1,200 on 14 November and 21 November 2019,[7] just prior to the payment she says she made to Mr Gledhill on 4 December 2019.
[6]Exhibit 3 page 23 and 24.
[7]Exhibit 3 page 28.
Mr Gledhill’s co-worker on the job, Mr William Brydon, says he worked alongside Mr Gledhill at the property. He further says at no time did he see any money being handed to Mr Gledhill by Ms Osborne.
What was the extent of the work completed?
Mr Gledhill says the only work completed by him was the installation of the concreted steel posts and “C” sections supporting the posts. Ms Osborne agrees this work was completed by Mr Gledhill but also says Mr Gledhill fitted the iron roof to the structure using roofing iron she had available on the property on 2 December 2019.[8] As evidence of this, she produces a photograph sent to her mother on 3 December 2019 showing the roofing in place.[9]
[8]Exhibit 3 page 2 para 11.
[9]Exhibit 3 page 20.
Mr Gledhill absolutely denies installing the roof. Mr Brydon supports Mr Gledhill’s evidence saying the only work he and Mr Gledhill completed at Ms Osborne’s property was the installation of the steel posts. No roofing was completed.
Mr Anthony Shaxson recalls seeing tradesmen at Ms Osborne’s home during the period and was aware that a pergola was being installed. However, under questioning at the hearing he could not confirm that he actually saw what the workmen were doing at any particular time, only that they were there. In particular, he could not say he saw them installing the roof, he just assumed they did.
Ms Osborne says it was Mr Gledhill and rhetorically asks - who else would do it? Neither she nor her son had the skills or knowledge to undertake roofing the structure.
The quality of the work completed
A building inspection was undertaken by Jim’s Building Inspections on 21 January 2020. This subsequent report details both major and minor defects in the building work. The report also shows a photograph of the pergola with a tin roof installed.
I am comfortably satisfied that the work undertaken is subject to the defects outlined in this report. The work is described as “unconventional handyman work” and rectification works were advised as soon as possible by a qualified tradesperson.
Ms Osborne has provided a quote for the rectification of the defects identified in the building report. The total of this quote is $6,275, based on a design to make the structure safe for cyclonic standards when using steel.[10]
[10]Exhibit 7.
Discussion
This project was subject to major communication difficulties from its inception. The limited paperwork does not assist me to understand what, if any, agreement was reached between these parties – other than the fact that Ms Osborne wanted a pergola built. After this, there is a complete denial by Mr Gledhill that some events occurred. Despite being under oath, the stories are so different that someone is not telling me the truth.
The standard of proof in this matter is based on the Briginshaw[11] principle and is on the balance of probabilities.
[11](1938) 60 CLR 336.
I find it unlikely that Mr Gledhill would have issued a receipt for any money he received. This project has all the hallmarks of a “cash job” – no contract, a document entitled “estimate” only, no statutory insurance, a request for a 50% deposit, a request for a cash payment only. Having said that, I am also comfortably satisfied that Ms Osborne also viewed this arrangement in the same way, evidenced by her acceptance of a lack of paperwork, and her acquiescence to a large upfront payment, also in cash.
Because this “arrangement” does not comply with the formal statutory requirements of domestic building contracts, Mr Gledhill cannot claim for his work under a contract[12] but in any event, he does not seek any funds from Ms Osborne either under the contract or as a quantum meruit claim for the work he agrees he performed.
[12]Queensland Building and Construction Commission Act 1991 (Qld Shed 1B s 13.
Is Ms Osborne entitled to any monies under her application?
Ms Osborne claims repayment of the deposit of $3,150.00 she says was overpaid by her, rectification costs of $6,275.00 and costs of $2,938.58. She says she was advised the deposit should only have been 10%.
The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.[13] However, it must also act fairly[14] and according to principles of natural justice[15] with as little formality and as much speed as matters permit.[16] Ms Osborne must establish her case against Mr Gledhill, proving her claim to the reasonable satisfaction of the Tribunal:
… “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect references… the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[17]
[13]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b), (c).
[14]Ibid s 28(2).
[15]Ibid s 28(3)(a).
[16]Ibid s 28(3)(d).
[17]Briginshaw v Briginshaw (1938) 60 CLR 336, 346 (Dixon J).
I am satisfied on the evidence of the gift from Ms Osborne’s mother, the evidence of her son about counting the money and the withdrawals shown in the bank accounts that Ms Osborne did pay Mr Gledhill $4,000 in cash in two envelopes each containing $2,000 on 4 December 2019. Mr Brydon’s evidence is vague and he was not made available for cross examination and so his evidence to this Tribunal was not able to be tested sufficient for me to place any weight on it.
Mr Gledhill had constructed a pergola with substantial faults. I have found the work is subject to the major and minor defects identified in the building report referred to above. I am satisfied that the only persons who were in a position to roof the pergola were Mr Gledhill and Mr Brydon.
Ms Osborne seeks the return of the majority of the deposit, the costs of rectification and further costs. Although I believe Ms Osborne’s version of the circumstances of the payment, in my view, neither of these parties comes to this hearing with “clean hands”. Each must take some responsibility for the mismanagement of these works. Neither party insisted on a proper contract. Ms Osborne did not insist on the statutory insurance that would have allowed her a claim under that scheme. There was no agreement on the terms of the contract from the beginning of the works that I am able to discern from any of the evidence before me and the evidence of any terms is hotly disputed by both parties.
I am satisfied that each party must bear some detriment in the outcome of this dispute. Ms Osborne carries the biggest burden forward as she must now repair the defects found in the structure. Mr Gledhill will lose his time and effort. I acknowledge he seeks no payment from Ms Osborne. That is appropriate in the circumstances.
However I am satisfied that Ms Osborne should recoup the deposit she paid Mr Gledhill. Considering all the circumstances of this matter, I am satisfied that Mr Gledhill should repay the deposit Ms Osborne paid him – the sum of $4,000.00 in satisfaction of the applications she has made.
As I have found that both parties are culpable in this matter, there will be no order as to costs.
The order will be that Mr Gledhill will pay Ms Osborne the sum of $4,000.00 within 14 days of the date of this order.
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