Peter Campbell Landscapes v Stormont
[2011] QCAT 79
•7 March 2011
CITATION: | Peter Campbell Landscapes v Stormont [2011] QCAT 79 |
PARTIES: | Peter Campbell t/a Peter Campbell Landscapes |
| v | |
| Delma Stormont | |
APPLICATION NUMBER: | BDL015-09 |
MATTER TYPE: | Building matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Mr Paul Favell, Member |
DELIVERED ON: | 7 March 2011 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The Tribunal orders that the Respondent pay the Applicant $4,226.05 by 4:00pm on 21 March 2011. |
CATCHWORDS: | Application to correct a mistake Queensland Civil and Administrative Tribunal Act 2009, s 135 |
APPEARANCES AND REPRESENTATION: | On the papers |
REASONS FOR DECISION
Introduction
- The Applicant Peter Campbell trading as Peter Campbell Landscapes makes an application pursuant to section 135 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
- A decision concerning the claim for unpaid money and allegations of defective work was delivered on 21 September 2010. In that decision the Tribunal ordered Delma Stormont, the Respondent, to pay the Applicant the sum of $1,965.33 by 4:00pm on 22 October 2010.
- In an amended claim the Applicant claimed $5,451.51 as money outstanding under a contract to carry out landscape works at a site situated at 111 Sackville Street, Greenslopes. The Applicant further claimed $3,178.50 in extra work that was completed beyond the contract including $600.00 for soil and $200.00 for bobcat hire and the sum of $245.00 for filing costs. The decision noted that the Applicant abandoned the further claim of $1,200.00 and the progress payment invoice claim of 10 August 2009 was varied accordingly, as was the amended claim.
- The decision also noted that the Respondent had paid the Applicant $3,306.00 which sum he had not taken into account when framing his claim (exhibit 3). An explanation for the basis of the order is contained in paragraphs 23 and 24 of the decision and is as follows:
“23. Based on the original claim by Mr Campbell and his concession that he had not taken into account a payment of $3,306 when framing his claim (exhibit 3) the claim by the Applicant is $5,451.51 less $3,306 ($2,145.50) plus $917.78 (bobcat and soil extra) namely $3,063.28. I accept that if it were not for defective work or incomplete work the Applicant would be entitled to the sum of $3,063.28. I accept that the extra work for the bobcat and soil was requested and the work performed. The Applicant is entitled to be paid for that work.
24. Much of the difficulty here arises because of the uncertainty in the scope of work because of the relatively vague nature of the contractual documentation. The Respondent had a view of how the work was to be carried out and what was to be included. That was not however reflected in the documentation. Subject to what I have said I am of the view that the work set out in the documentation was done. Totalling the amounts allowed as discussed above the sum of $1,097.95 should be deducted from the amended claim sum of $3,063.28. I find that the Respondent should pay the Applicant $1,965.33 and I so order.”
- In reaching its decision, the Tribunal relied upon the document “amended claim amount” which had as the outstanding amount the sum of $5,451.50. It also had claims for extra works of $3,178.50 which included $200.00 for a bobcat and $600.00 for soil. Hence the total amount claimed in that document was $8,630.00.
- During the hearing, the Applicant conceded that $3,306.00 was paid by the Respondent and in exhibit 3 the Applicant acknowledged that payment and said, “I apologise for this miscalculation in the figures regarding this matter”.
- This application contends that the tribunal erred in deducting $3,306.00 from $5451.50 rather than from $8,630.00.
- As a consequence of this application, the Tribunal obtained the recording of the hearing and caused the relevant portion to be transcribed as follows:
Tribunal:Okay, so just looking at your statement of claim, do you have that in front of you?
Applicant: Yes I do.
Tribunal: You give particulars that the contract was a self prepared agreement, prepared by the Applicant and signed in acceptance by the respondent, is that so?
Applicant: That’s correct.
Tribunal: I’m just looking at paragraph three.
Do you have a copy of the statement of claim?
Respondent: I’m sorry, I’m not sure which document you’re pointing to.
Tribunal: There is a statement of claim which was being filed with the tribunal.
Respondent: The initial one?
Tribunal: Well, we should work off the amended one I think.
Was there an amended statement of claim?
Applicant: Yes there was sir. I think the one you’re going of is the first one that was sent to the tribunal.
Tribunal: Right, I’ll just try to find the amended one.
So the amended claim didn’t have the same format…
Applicant: No, the material wasn’t in there, it was just the
Tribunal: It’s just a page is it? Which shows commences amended claim amount, contract price $39,451.50, and then deposit claim, progress claim etc. etc. down to an amended claim amount, is that it?
Applicant: Yes.
Tribunal: And that was the change was it?
Applicant: Yes that’s right.
Tribunal: We’ll go back to your first claim, was that prepared for you was it?
Applicant: No I prepared that.
Tribunal: The particulars of contract, statement of claim?
Applicant: Yep.
Tribunal: So when did you commence work?
Applicant: Um..we commenced works roughly on the 23/06/09.
Tribunal: Was the deposit paid?
Applicant: Yes that’s correct, yep.
Tribunal: And from your amended claim, there were payments made along the way.
Applicant: Yes that’s right.
Tribunal: And are those payments properly reflected in your amended claim?
Applicant: In the amended claim, was really a response to Delma’s response and there was a few other letters from Doyle’s Fencing and Chris DeJong Electrical was added into it.
Tribunal: Okay you’ve got deposit paid $8,000, progress payment paid $11,000, was that paid?
Applicant: Yes.
Tribunal: Progress payment paid $15,000, was that paid?
Applicant: Yes.
Tribunal: Leaving an outstanding amount of $5,451.50.
Applicant: Yep.
Tribunal: Then you’ve got extra works. Driveway boundary fence $2,981 etc.
Applicant: Yep. Those works, a lot of the extra works there were the boxing up of the driveway was big because Delma wanted the fence to go up the side of the property and we were pouring the driveway and we couldn’t put the mowing strip in because we had to drill fence holes through it so it just wasn’t practical so we couldn’t do it. And I informed Delma that there was going to be extra work for that because we had to meet up the side of the neighbouring property or there would have been a little gap that would have held rubbish and things like that. Umm, and that was the labour for the mowing strip and the boxing. And there was extra, we planted palms for Delma, as she requested. And they weren’t in our works. Umm and there was the other extra works for the driveway and things like that. I haven’t charge Elma for the boxing of the driveway and things like that, that’s been deleted.
I will note there was an error in that amended claim. I did pick up, when I was with my accountant doing bookwork, Delma did send a payment of $3306. I said that it was incorrect. I accept that it is paid.
Tribunal: I will mark that as exhibit 3.
So does that come off your amended claim amount?
Applicant: Yes, that’s correct.
Tribunal: So, from $8,630 we deduct $3,306?
Applicant: Yeah, well, that’s all that, and then I’ve just gone through just to break it all down. The $5,451.50 which was due – this is the amount that I’m claiming, and then I believe I’m allowed to claim $245 for the court fees and $200 for the bobcat which Delma didn’t pay and there was $117.78 for the soil balance which was outstanding. So that isn’t in the amended claim.
Tribunal: Sorry, so let me just get that. You’re now claiming…
Applicant:$5,451.50 from the contract. I’m not claiming the works of about $1,200 which we did for the driveway. And I believe I’m allowed to claim $245 for court filing fees.
Tribunal: $245 was it?
Applicant:Yes that’s right, $200 for the bobcat and there was a soil balance for $117.78. Brings the total to $6,014.78.
Tribunal:What was the $117.78 for? Soil testing?
Applicant:No, soil supply. We supplied Delma with soil and it said approximate.
Tribunal: What does all of that come to?
Applicant:That figure there was 117.78. Ohh, sorry, the total was $6,014.28. That is my claim.
- The Tribunal has mistakenly deducted $3,306.00 from the amount claimed to be due under the contract. It appears from the transcript above that the Applicant was to allow for the payment of $3,306.00 to be deducted from the amount of $8,630.00 in his amended claim.
- The amended claim was set out as follows:
Contract Price $39 451.50
Deposit Paid $ 8 000.00
Progress Payment Paid $11 000.00
Progress Payment Paid $15 000.00
Outstanding Amount $ 5 451.50
Extra Works
Driveway Boundary Fence $2 191.00
Extra Gate – Compost Area $ 187.50
Soil $ 600.00
Bobcat $ 200.00
Total Extra $3 178.50
Amended Claim Amount $8 630.00
- In his written submissions on this application the Applicant said:
“What I seek to have corrected and the reasons for my application is as follows –
·The original claim by the Applicant was $5451.51.
·The amended claim by the Applicant was $8630.00
· Exhibit 3 was presented to the Q-CAT Member and to the respondent at the directions hearing 24 June 2010.
· Exhibit 3 stated a miscalculation in figures. This amount being $3306.00.
· In the Q-CAT decision the amount of $3306 was deducted from the original claim amount of $5451.60
· The amount of $3306 should have been deducted from the amended claim amount of $8360.”
- Accordingly, it appears that there has been a mistake such that there is a material miscalculation of figures which in my view should be corrected.
- The Tribunal also notes that the Tribunal mistakenly allowed $917.17 for “bobcat and soil extra” ($717.28 soil and $200 Bobcat in final invoice 26 August 2009), when the claim was orally amended to “$200 for the bobcat and there was a soil balance for $117.78”. However, since there were amounts already included in the amended claim for soil and bobcat, those amounts should not be awarded again after the sum of $3,306.00 is deducted.
- The reasons and decision should be corrected so that the claim of the Applicant for $8,630.00 less $3,306.00 should be allowed in the sum of $5,324.00 from which the sum of $1,097.95 (for defective or incomplete work as found earlier) should be deducted.
- Accordingly, the order is amended so that it is ordered that the Respondent pay the Applicant $4,226.05 by 4:00pm on 21 March 2011.
- The claim for filing fees has not been allowed for because of the relative success of both parties and because of section 100 of the QCAT Act.
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