Prestige Pool Paving and Landscaping Pty Ltd v Skordou

[2011] QCAT 456

CITATION: Prestige Pool Paving & Landscaping Pty Ltd v Skordou and Anor [2011] QCAT 456

PARTIES:	Prestige Pool Paving & Landscaping Pty Ltd
v
Andrew Skordou Vikki Comino

APPLICATION NUMBER:   BDL312-10

MATTER TYPE: Building matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Kate Buxton, Member

DELIVERED ON: 1 September 2011

DELIVERED AT:      Brisbane

ORDERS MADE: 1.     The Respondents’ application filed 13 July 2011, to strike out or dismiss the proceeding, is refused.

CATCHWORDS:  Application to strike out or dismiss – only granted in clear cases – quantum meruit claim

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. The Applicant has commenced these proceedings to recover what it asserts is the final payment owing for works undertaken to construct the Respondents’ swimming pool.

2. It is not in issue between the parties that this is a contract to which the Domestic Building Contracts Act 2000 (‘DBCA’) applies.

1. Sections 26 and 27 DBCA together require that a “regulated contract” (such as this) be in writing and that it set out the “required matters” stated in section 28. Those matters include, at section 28(2)(i), a requirement to set out the contract price or, for a cost plus contract, how the amount is to be calculated.

1. The Respondents have applied to have the matter struck out or dismissed on the basis that it is misconceived or lacks substance.  The primary basis for this submission is that the contract on which the Applicant seeks to rely falls short of those statutory requirements either to stipulate a price or to provide a mechanism for arriving at that price.

1. The Respondents seek a summary dismal of the claim. Whilst section 47 of the QCAT Act provides a mechanism for ending proceedings early, such relief should only be granted in clear cases (Dey v Victorian Railways Commissioner (1948-9) 78 CLR 62; Agar v Hyde (2000) 201 CLR 552 at paragraph 57).

1. In this case, a six page written contract has been produced (exhibit A to Mr Scott’s affidavit sworn 13 July 2011, “the Contract”). It appears that the Contract refers to a mixture of fixed prices, approximations and price ranges, depending upon certain variables not known to the parties on 10 March 2010 when the Contract was signed by the First Respondent. The Applicant defends this document as being sufficiently compliant with the statutory requirements in the DBCA. On page 3 of the document, under the heading “Additional Costs”, certain contingencies are identified as leading to “extra costs”. Items on page 2 are identified as either provisional sums or prime cost items and those terms are identified on page 6 of the Contract. Therefore, whilst it is difficult to ascertain the final price from a reading of the Contract document alone, I do not accept the submission that this a clear case in which the mechanism for dealing with contingencies is inadequate. Section 28(2)(i) does not require a formula to be introduced into the Contract. Rather, the plain words of that provision require the Contract to state “how the amount the building contractor is to receive under the Contract is to be calculated”. Without expressing a concluded view in relation to this particular Contract, it may be adequate that the “calculation” can occur later and by reference to the matters set out in the Contract.

2. In its Amended Statement of Claim filed 8 August 2011 the Applicant has claimed, as an alternative to contractual relief, a quantum meruit basis of recovery.  Such a claim in equity survives the defeating of the enforceability of the Contract under the statutory provisions set out above.  Therefore, even if the Respondents’ submissions on the unenforceability of the Contract were accepted (which I have indicated has not been demonstrated with sufficient clarity by the material supporting this application) a hearing would be required on the quantum meruit issue in any event.  For these reasons I decline to dismiss or strike out the application.

1. The Respondents’ application filed 13 July 2011, to strike out or dismiss the proceeding, is refused.