Pole v Hicks
[2012] QCAT 5
•4 January 2012
| CITATION: | Pole v Hicks [2012] QCAT 5 |
| PARTIES: | Leanne Pole (Applicant) |
| v | |
| Michael Hicks (Respondent) |
| APPLICATION NUMBER: | BDL171-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Member |
| DELIVERED ON: | 4 January 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That Michael Hicks pay to Leanne Pole the sum of $8,255 (eight thousand two hundred and fifty-five dollars) within 28 days of these orders. |
| CATCHWORDS: | BUILDING DISPUTE – where building works not completed and done so poorly that must be demolished BUILDING DISPUTE – where claim for restitution – where total failure of consideration BUILDING DISPUTE – costs where party successful in claim made Queensland Civil and Administrative Tribunal Act 2009 Pavey v Matthews Pty Ltd v Paul (1987) 162 CLR 221 Lyons v Dreamstarters Pty Ltd [2011] QCATA 142 |
APPEARANCES and REPRESENTATION (if any):
This proceeding was heard on the papers pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
After some discussions and a verbal quotation for agreed work, Ms Pole engaged Mr Hicks to undertake some renovations under her house at Ferny Hills. The work included sheeting the walls and ceilings and cornicing to pre-painting stage; replacing and installing windows and doors; replacing some rot damage to an existing wall; and building walls outside to hide any existing posts. The agreed price for the work was $5,000 cash. There was no written contract. Indeed, no documentation of any type was provided by Mr Hicks to Ms Pole.
A deposit of $3,000 for materials was requested from Ms Pole and paid by her in cash on 14 December 2010.
The work commenced on 5 January 2011. Between 7 January 2011 and 19 January 2011, Ms Pole paid further amounts in cash as requested by Mr Hicks, totalling $4,500. Apparently Mr Hicks said that he needed further monies for additional building supplies over and above the agreed amount of $5,000. Ms Pole says that he told her that the job would not be completed unless the monies were paid.
There was apparently no agreed completion date, and the work proceeded sporadically and on a protracted basis despite Ms Pole’s telephone calls and sms text messages to Mr Hicks when he failed to arrive on numerous occasions nominated by him as days he would attend to the work. He left the premises on 19 March 2011 with all of his tools. He did not return to complete the work.
Ms Pole’s subsequent attempts to contact Mr Hicks by telephone were unsuccessful. After taking legal advice, she forwarded a letter of demand to Mr Hicks requiring that he return the monies paid by her. As there was no response, she commenced proceedings in the tribunal seeking orders that Mr Hicks repay her the sum of $7,500, being the full amount she paid to him in cash, together with costs of $755, for the costs of a building report of $500 and filing fees of $255.
Ms Pole deposes to serving Mr Hicks with her application on 7 July 2011. He appeared at a directions hearing held on 24 August 2011, but did not file his response to the application by 31 August 2011 as directed, and did not attend a compulsory conference held on 28 September 2011. Directions were then made for Ms Pole to file and serve the evidence she relies upon by 19 October 2011 and for the matter to be heard on the papers in the absence of any action to participate in the proceedings by Mr Hicks. The Tribunal forwarded the directions to both parties.
Ms Pole deposed to attempting to personally serve Mr Hicks with her affidavit of evidence on various days between 14 and 19 October 2011. She subsequently advised the registry that she personally handed the material to him. Although she has not provided a further affidavit, she confirmed her verbal advices to the registry in an email.
Given that the tribunal is not bound by the rules of evidence[1] and that the tribunal has a responsibility to act with as little formality and technicality as is consistent with achieving justice,[2] I am satisfied on the balance of probabilities, on the basis of the material available from Ms Pole that Mr Hicks as been served with Ms Pole’s affidavit material. I consider it appropriate to proceed to determine the proceeding on the papers.
[1] QCAT Act, s 28(3)(b).
[2] QCAT Act, s 28(3)(d).
The Building Report
Ms Pole obtained a report from Glorious Constructions in May 2011. A Mr Nelson prepared the report. He details a litany of concerns about the work done under the house by Mr Hicks, which are supported by photographs.
[10] The issues he raises include the following. The bottom plate of the front wall which has rotted out was not replaced prior to wall sheeting being installed, with the consequence that the wall is not level. The house has also not been levelled. The ant-capping has not been replaced and does not comply with the Australian Standards. The framing of the walls is generally of very poor standard, which has led to very poor quality of roof sheeting. The plasterboard installation and setting is very poor and will need to be replaced. The cornice has been installed in many small pieces and in many cases is poorly installed. Cornice cement on the walls and cornice face cannot be removed without damage to the cornice. There are holes in the plasterboard and ceiling. There are concrete posts exposed. Holes have been cut in the ceiling, apparently to locate electrical wiring. Doors and windows have not been correctly installed. There are no flashings externally to prevent water ingress.
[11] In summary, Mr Nelson considers that the works done are of such poor standard that they will have to be removed and redone.
[12] He has prepared a quote for rectification of the works including full demolition and removal of the works which totals $21,832.51. Ms Pole acknowledges that she must have the building works demolished and redone.
Discussion and Decision
[13] I accept the evidence of Ms Pole about the contractual arrangements between herself and Mr Hicks. For the price of $5,000, Mr Hicks was to perform the agreed works in the area downstairs at Ms Pole’s home. The contract was varied to alter the price to $7,500. Ms Pole paid the contract price in full. Mr Hicks undertook some work but did not complete the job. I also accept the evidence of Mr Nelson that the work was very poorly executed and must be removed and redone.
[14] The Domestic Building Contracts Act 2000 (the DBC Act) applies to the contract because it is a contract to carry out domestic building work.[3] Under section 44 of the DBC Act, Mr Hicks as a building contractor warranted that the work would be carried out in appropriate and skilful manner and with reasonable care and skill.
[3] DBC Act, ss 7 and 8.
[15] Ms Pole makes a claim for restitution, seeking in effect repayment to her of the monies paid by her to Mr Hicks. Essentially, for a claimant to succeed in restitution the other party must have been enriched, at the expense of the claimant and the enrichment must be unjustified.[4] Enrichment of a party is a benefit: money is considered a benefit.[5] Australian courts have identified various factors as constituting an unjustified enrichment, including a total failure of consideration.[6] To succeed on the basis that there has been a total failure of consideration, a claimant must show that no consideration has been received for their payment of money and the contract does not provide for the money to be retained by the other party.
[4]Pavey v Matthews Pty Ltd v Paul (1987) 162 CLR 221; ANZ Banking Group Limited v Westpac Banking Corp (1988) 164 CLR 662; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.
[5] BP Exploration Co (Libya) Ltd v Hunt (No 2) (1979) 1 WLR 783.
[6] Roxburgh v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516.
[16] Mr Hicks did purport to perform some of his obligations under the contract by undertaking some of the agreed works. However, in breach of the implied warranty in section 44 of the DBC Act, the works have been so poorly undertaken that they have no value to Ms Pole and must be demolished. Ms Pole has received no value for the money she has paid to Mr Hicks under the agreement. I am satisfied that there has been a total failure of consideration. Mr Hicks has been enriched to the extent of the payments to him by Ms Pole, and given the total failure of consideration, the enrichment is unjustified. The oral contract does not provide for Mr Hicks to retain the monies paid in these circumstances.
[17] Therefore, Ms Pole is entitled to the return of the monies paid by her to Mr Hicks in the sum of $7,500.
[18] Ms Pole also seeks her costs of obtaining the building report and her filing fee totalling $755. Having regard to the principles enunciated in Lyons v Dreamstarters Pty Ltd[7] about costs in building disputes and that Ms Pole has been successful in her claim, I am satisfied that it is appropriate to award the costs claimed.
[7] [2011] QCATA 142.
[19] I make orders accordingly.
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