Pole v Hicks

[2012] QCAT 5

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
Domestic Building Contracts Act 2000, ss 7, 8, 44

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
BP Exploration Co (Libya) Ltd v Hunt (No 2) (1979) 1 WLR 783
Roxburgh v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516

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

1. 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.

2. A deposit of $3,000 for materials was requested from Ms Pole and paid by her in cash on 14 December 2010.

3. 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.

4. 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.

5. 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…