Relaxed Living Homes Pty Ltd v Allstyle Tiling (Qld) Pty Ltd
[2013] QCAT 26
| CITATION: | Relaxed Living Homes Pty Ltd v Allstyle Tiling (Qld) Pty Ltd [2013] QCAT 26 |
| PARTIES: | Relaxed Living Homes Pty Ltd (Applicant) |
| v | |
| Allstyle Tiling (Qld) Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL059-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 17 October 2012 |
| HEARD AT: | Mackay |
| DECISION OF: | Graham Quinlivan, Member |
| DELIVERED ON: | 25 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent pay to the applicant within 28 days the amount of $20,000.00. 2. There is to be no order as to costs. |
| CATCHWORDS: | Builder/sub-contractor – terms of agreement – reasonable remuneration |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Ross Gee and Ms Lianne Gee |
| RESPONDENT: | Mr Tom Egglestone and Mr Nick Egglestone |
REASONS FOR DECISION
On 23 February 2012 Relaxed Living Homes Pty Ltd (the applicant) brought an application in the Queensland Civil and Administrative Tribunal (QCAT) seeking orders against Allstyle Tiling (Qld) Pty Ltd (the respondent) as follows:
·Payment of $29,306.00 by the respondent to the applicant.
The application was listed for hearing in Mackay on 17 October 2012.
Applicant’s case
The applicant claims that sometime during 2010, it engaged the respondent to carry out certain tiling works at 58 Admiral Drive, Dolphin Heads (the property). In his second statement of evidence on behalf of the applicant, Mr Gee claims that the basis of the engagement was that “(i)n 2010 the Respondent was asked by the Applicant to provide a Meter Rate Sheet specifically for the tiling works to be undertaken at 58 Admiral Drive… as tiling was to commence in mid-2011. This was to be presented to the Owner. The Meter Rate Sheet was provided by the Respondent on 6 December 2010 in a document titled “Quote” and the Owner agreed that the rates were acceptable.”
The applicant denies the allegation by the Respondent that the arrangement was a “do and charge” situation. Mr Gee states that all of the regular tradesmen used on the job were asked to submit a measurable charge rate if not an actual quote to allow the owner to compare these rates against their regular tradesperson rates. Mr Gee claims that the document dated 6 December 2010 and headed “Meter Rate” was relied on throughout the job and no variations were supplied.
Mr Gee gave evidence that the respondent submitted the “final invoice for Completion of Works” on 7 October 2011. The account was paid “in good faith” almost immediately and also with the understanding that the respondent still had works to complete on the job and would complete those accordingly.
The applicant further claims that the respondent issued 2 tax invoices to the applicant in the amounts of $48,638.50 (dated 6 October 2011) and $12,980.00 (5 September 2011) being a total of $61,618.50 inclusive of GST.
The applicant states that it had engaged the respondent to undertake tiling works for approximately 3 years prior to the job being undertaken and that a good working relationship and friendship had existed.
The applicant alleges that subsequent to the invoices being paid, a dispute developed between the parties regarding the applicant’s assessment that the respondent’s invoices were excessive and the works were incomplete. Further the applicant was required to engage another tiler to complete the work at a cost of $6,363.50.
On 1 December 2011 the respondent advised that he could not complete the work and that he would refund an amount for the incomplete work. The respondent paid the applicant the sum of $1,265.00 by way of reimbursement for the work that had not been completed.
The applicant estimated on 9 December 2011 that a reasonable cost for the tiling work was $37,411.00 based on a breakdown provided by the respondent. On his assessment this meant a difference of $24,207.50 inclusive of GST. In order to arrive at the amount being claimed the applicant has added the cost of completing the work $6,363.50 and then subtracting the reimbursement provided by the respondent $1,265.00. The resulting figure is $29,306.00.
Mr Gee on behalf of the applicant sought advice from Mr Malcolm Hull of the Master Builders who inspected the work and advised Mr Gee that, in his opinion, the invoices were excessive. In his statement to the Tribunal Mr Hull states “… the amount charged by the tiler for labour costs is far and beyond the industry accepted standard. Many tiling man-hours appear to have been overcharged on this construction, particularly for men not working on site”. Mr Hull estimated, “using the most expensive prices he could identify”, that the job was worth $28,914.00. Finally he believes that the respondent has overcharged and has been overpaid for the work undertaken by it.
Mr Hull gave evidence at the hearing that he viewed the job on 1 December 2011 and admitted in cross-examination that was not aware of the number of hours spent by the respondent on the job and was not aware of all the work that had to be done or the problems that might have been encountered.
Mr Dean Sutherland provided a statement in support of the applicant’s case. Mr Sutherland was requested by the applicant to complete the tiling work. In his view the job was nowhere near finished when he returned to the job. He outlined a series of tasks which needed to be completed. He offered the opinion that, as a professional and qualified tiler, the job should have cost approximately $30,000-$35,000 in total. Mr Sutherland did not give evidence at the hearing.
Mr Brad Payne who was the supervisor on the job, also provided a statement on behalf of the applicant. Mr Payne indicated that he was a former friend of the respondent. He stated that during the job, the respondent would brag about how the owner was a multimillionaire and how the job was cost plus and he was going to make a fortune. Mr Payne offered his opinion that the price of the tiling in this job was “way over the top”. Mr Payne gave some limited evidence at the hearing and expressed his view that “Nick had no intention of coming back”.
Respondent’s case
The respondent filed a Response on 29 March 2012. In that document he disputes the allegations in the Application and asserts that “At no time during the work was any complaints raised. I was instructed to meet with and do all things the owner of the property instructed me to… I was asked to work with the material provided by the property owner, even though I explained they were inferior products and far more man hours would be required…”
The respondent sought that the Tribunal order the complainant (applicant) to desist from contacting the respondent’s suppliers and customers with claims of Allstyle Tiling ripping the applicant off.
In his opening statement the respondent claims that there “is no contract or sub-contract agreement, defects list or site instructions” and that the job was “purely do and charge”. Further that the main floor was the only component calculated on a square meter rate. On this basis the respondent claims that the applicant has no right to ask for his money back because there was no contract or agreement.
The respondent disputes the evidence of Mr Hull and claims that there is no industry standard for this type of job and that the respondent is an independent contractor who has the right to charge what he likes.
The respondent produced a statement from Mr Darren Glase from Glase Tiling dated 13 March 2012 who stated that he attended a meeting with the respondent, the applicant and the owners and that prior to the arrival of the owners heard the applicant explain to the respondent that he agreed with the tiling price and that he only needed help to get paid from the owners. Mr Glase did not attend at the hearing.
In his statement of evidence dated 5 October 2013 the respondent provides an analysis as to how he was in fact saving the applicant money based on the figures provided by Mr Hull. On this analysis the respondent appears to claim an additional $13,478.65 + GST for uncharged work.
In his final submissions the respondent categorically denied the existence of a contract. He states the “(t)he applicant cannot produce a quotation that shows 58 Admiral Drive, Dolphin Heads because one does not exist as the job was under a cost plus arrangement.” He disputes that the document produced by the applicant dated 6 December 2010 represents the basis of the agreement.
The respondent also adopts the statements by Mr Sutherland and Mr Payne to the effect that he suggests that they admit that the job was cost-plus.
The Respondent contends that the invoice he received from the applicant is not his responsibility because his work had finished when he ran out of tiles. He claims that he could not wait 5 weeks for the tiles to be delivered, but if he had returned to finish the job on do and charge, then the applicant would have had to pay the respondent for that work.
Consideration
The first issue to determine whether there was an agreement between the parties regarding the tiling work at the property. There is a fundamental difference of opinion between the applicant and the respondent as to the nature of the arrangement that led to the dispute in this matter.
The applicant alleges that there was an agreement based on a document titled a “Quote” supplied by the respondent on 6 December 2010 which was approved by the owner and led to the work being undertaken during 2011. The respondent claimed in cross-examination that this document was prepared for another project entirely being Rural View Estate for Mr Mick Coles.
The applicant alleges that this was the basis for the tiling work to be done and that all tradesmen on the job were asked to provide similar estimates. The respondent claims that the arrangement was a “do and charge” job.
The Tribunal prefers the evidence of the applicant. It is clear to the Tribunal that there was an agreement between the applicant and the respondent to undertake certain tiling works at the property. The terms of that agreement are in dispute but the Tribunal is satisfied that the document produced by the respondent and labelled Quote was the basis for the charging of the work to be done. The Tribunal does not accept that this was an open ended “do and charge” situation.
The current dispute arises out of the invoices provided by the respondent regarding the tiling work undertaken. The 2 invoices totalled $61,618.50 including GST and were received by the applicant 7 October 2011. Following a request by the respondent and in view of a long-standing good working relationship between the applicant and the respondent, the invoices were paid immediately.
Subsequently the invoices were apparently questioned by the owners of the property and the applicant sought a justification of the charges from the respondent.
The respondent provided a list of itemised charges on 1 November 2011. In the document the respondent states that “the job was completed with the highest level of accuracy, intricacy and quality materials”. At all times the respondent has maintained that this was a “do and charge” job and that he was entitled to charge as he saw fit.
The applicant has produced 3 independent statements to support his claim. Mr Malcolm Hull from the Master Builders estimates that job should have cost about $28,914.00 cost. Mr Dean Sutherland in a statement dated 10/9/12 estimates that the job should have cost between $30,000-$35,000. The applicant estimated that a reasonable cost would be $34,411.00.
Mr Brad Payne stated that the respondent bragged about how the job was cost-plus , the owner was a multi millionaire and the respondent was going to make a fortune and that the price of the tiling was way over the top.
In response the respondent argues that if anything he undercharged for the job and claims that he could have charged an additional $13,478.65 + GST.
The Tribunal accepts the evidence of the independent witnesses regarding their estimates as to a reasonable cost for the job. At the hearing the respondent did not pursue his claim for an additional amount.
In relation to the charges by the respondent, the Tribunal accepts that the amount paid to the respondent is far in excess of the amount that would normally be charged for a tiling job such as this. However the Tribunal is satisfied that this was an unusual situation and the respondent may have had an expectation that he would be well paid for his work on this project. The Tribunal also accepts that the applicant paid the invoices without question, a decision that he now regrets. The applicant now seeks that the Tribunal rectify that error.
On the respondent’s side, he did not complete the outstanding work and the reimbursement he provided was not representative of the actual cost involved in completing the job. It is clear that the invoice from the respondent dated 6 October 2011 is headed “Final Claim for Completion of Job” was for the total of the tiling work to be done. The applicant had a reasonable expectation that the outstanding work would be done.
Taking into account all of the evidence the Tribunal therefore has determined that the respondent has overcharged the applicant for the work actually done and has taken advantage of the situation to obtain a significant benefit. However the applicant must also accept some responsibility for allowing this situation to develop by not properly managing the payment of the accounts and the expectations of the tradesmen involved.
It is not for the Tribunal to determine what a reasonable cost for the tiling job would be but to determine if the respondent should make a re-imbursement to the applicant. The Tribunal has considered all of these factors and has decided that the respondent should pay to the applicant within 28 days the amount of $20,000.00 being an amount including allowances for both the cost of completing the work, the previous credit note and a reasonable sum to adjust the over-payment made to the respondent for the work undertaken.
There is to be no order as to costs.
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