Richards Projects Pty Ltd v Bakker
[2014] QCAT 385
| CITATION: | Richards Projects Pty Ltd v Bakker & Anor [2014] QCAT 385 |
| PARTIES: | Richards Projects Pty Ltd (Applicant) |
| v | |
| Jan Bakker Anna Kramer (Respondents) |
| APPLICATION NUMBER: | BDL232-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 30 July 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Browne |
| DELIVERED ON: | 5 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Jan Bakker and Anna Kramer pay the amount of $3,027.00 plus interest of $3,920.41 to Richards Projects Pty Ltd by 4.00pm on 2 September 2014. |
| CATCHWORDS: | BUILDING MATTERS – where claim for balance of money owing under the contract – where matter to be reconsidered with the hearing of any additional material Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Robert Richards, Director of Richards Projects Pty Ltd |
| RESPONDENT: | Mr Bakker and Ms Kramer, self represented |
REASONS FOR DECISION
Richards Projects Pty Ltd built a house for Mr Bakker and Ms Kramer at 10 Barton Street, Reedy Creek, Queensland (the house) and a Master Builders contract was prepared and signed by the parties dated 4 June 2010 (the contract).
A dispute arose between Mr Bakker and Ms Kramer and Richards Projects about the work performed and the amount owing under the contract.
Proceedings were commenced in the Tribunal by Mr Bakker and Ms Kramer seeking the sum of $50,000.00, later amended to $120,315.00, for rectification of defective and incomplete work. Mr Bakker and Ms Kramer also sought relief from payment of an amount of $13,525.00 claimed by Richards Projects in its final claim for payment under the contract.
Richards Projects filed an application for a minor civil dispute – minor debt (monetary claim) later transferred to the Tribunal’s Building Matters list, claiming the amount that is now outstanding under the contract in the sum of $13,070.00 plus interest.
The two related applications - application BD048-12 filed by Mr Bakker and Ms Kramer for rectification works and application BDL232-12 filed by Richards Projects for money owing under the contract - were heard together before the Tribunal on 29 and 30 April 2013 and a final order was made by the learned Member on 26 July 2013.
Mr Bakker and Ms Kramer filed an application to appeal the reasons for decision of the learned Member made on 26 July 2013.
On 28 April 2014 the Appeal Tribunal having considered the grounds of appeal were satisfied in allowing the appeal that there was a denial of natural justice. The Appeal Tribunal found that Mr Bakker and Ms Kramer were not afforded procedural fairness in that they were not given an opportunity to address the issue of money owing under the contract. The Appeal Tribunal found that Mr Bakker and Ms Kramer were not afforded an opportunity to put before the learned member relevant material to support their contention that the amount owing under the contract was not conceded (by them) and that there were amounts owed to them by Richards Projects not related to the rectification claim.[1]
[1]Bakker & Anor v Richards Projects Pty Ltd [2012] QCATA 099 at [43].
The Appeal Tribunal made the following findings in relation to Mr Bakker and Ms Kramer being denied an opportunity to ‘fully explain’ and present material in relation to the monetary claim:
From a reading of the transcript, it is obvious that Mr Bakker was not given the opportunity to put material to the Member which addresses a contrary position to the Member’s perception or understanding of Mr Bakker’s case. The Member proceeded on the basis that Mr Bakker and Ms Kramer conceded that the amount claimed by Richards Projects was owed. Mr Bakker attempted to explain to the Member that this was not the case. Further, Mr Bakker was prevented from addressing the issue or from referring to material in support of his contention that the sum claimed was not conceded as owing but rather there were amounts which Richards Projects owed to Mr Bakker and Ms Kramer which had no connection to the rectification claim.[2]
[2]Ibid [43].
The Appeal Tribunal made final orders on 28 April 2014: the decision in application BDL232-12 is set aside and the application BDL232-12 is returned to the Tribunal for reconsideration with the hearing of any additional material relevant to the proceedings.
The only issue to be determined by the Tribunal at the hearing is what if any money is payable to Richards Projects after the deduction of the cost of rectification fixed in the sum of $6,469.00[3] in the Tribunal’s decision dated 26 July 2013.[4]
[3]The cost of rectification as determined by the learned Member in the Tribunal’s decision dated 26 July 2013 is $6,469.00 and not $6,409.00 as reflected in the Tribunal’s Direction dated 21 May 2014. The Tribunal has the power to correct a “mistake” such as the reference to the cost of rectification in the Direction dated 21 May 2014 under s 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
[4]QCAT Direction dated 21 May 2013.
Is there evidence of further statements and material to be relied upon by the parties?
Richards Projects seek an order from the Tribunal that Mr Bakker and Ms Kramer pay the amount owing under the contract being $13,070.00 plus interest from 1 February 2011 to 30 July 2014 (inclusive) at a rate of 20% per annum as provided under the contract.[5]
[5]Clause 11.9 of the general conditions of contract as specified in item 19 of the schedule being a rate of 20%.
Richards Projects in material filed in the Tribunal on 8 July 2014 refer to a payment of $3,574.00 on 12 August 2013 from a ‘security deposit joint account’. The Tribunal in determining the amount owing under the contract must deduct the costs of rectification in the sum of $6,469.00. This would leave a balance of $3,027.00 plus interest claimed under the contract.
Mr Richards conceded at the hearing that any interest would be payable on the amount outstanding of $6,601.00 (after deduction of rectification costs) for the period from 1 February 2011 to 12 August 2013 (inclusive); and a further calculation of interest would be payable on the balance owing, after deducting the security deposit payment of $3,027.00, for the period from 13 August 2013 to 30 July 2014 (inclusive).
Mr Bakker and Ms Kramer did not file any further statements of evidence or material in compliance with the Tribunal’s Direction made on 21 May 2014. Mr Bakker and Ms Kramer informed the Tribunal at the commencement of the hearing that they rely upon material that was previously tendered at the hearing of application BDL048-12 and application BD048012, before the learned Member on 29 and 30 April 2013.
At the commencement of the hearing the Tribunal referred Mr Bakker and Ms Kramer to the Directions made by the Tribunal on 21 May 2014 requiring them to file further statements of evidence by 20 June 2014; and to the Appeal Tribunal orders made on 28 April 2014 that require the Tribunal to reconsider application BDL232-12 with a hearing of any additional relevant material.
Notwithstanding Mr Bakker and Ms Kramer’s noncompliance with the Direction made on 21 May 2014, the Tribunal in meeting its obligations under the Queensland Civil and Administrative Act 2009 (Qld) to observe the rules of natural justice and to ensure that all relevant material is disclosed,[6] invited Mr Bakker and Ms Kramer to again refer the Tribunal to the relevant material that they seek to rely upon at the hearing.
[6]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28.
Mr Bakker and Ms Kramer referred the Tribunal to various exhibits tendered at the hearing before the learned Member on 29 and 30 April 2013. For the purposes of identification of the material to be relied upon, the Tribunal invited Mr Bakker to again tender the documents and assisted Mr Bakker by making available additional copies of the documents that were identified as exhibits marked “1” and “2”.
Mr Bakker and Ms Kramer contend that there is an amount of money owing to them by Richards Projects as set out in the prepared schedule of items.[7] The schedule of items includes a claim for compensation calculated on a weekly basis totalling an amount of $10,100.00.[8] The other items referenced in the schedule include cleaning tiles, extra tiles and an amount has been claimed for ‘piers’ that total the sum of $11,160.75.
[7]Exhibit marked “1”.
[8]Ibid.
In relation to the claim for compensation, Mr Bakker and Ms Kramer contend that the claim has been calculated on a weekly basis and represents compensation for $100.00 per week commencing from approximately one year after they moved into the house. Mr Bakker contends that the compensation claim relates to inconvenience caused to Mr Bakker and Ms Kramer as a result of defective works performed by Richards Projects. Mr Bakker stated at the hearing that there were several ‘faults’ on the final inspection report and he sent several emails to Richards Projects about the defective works.
In relation to the other miscellaneous items referred to in the schedule, Mr Bakker and Ms Kramer contend that the items represent money paid by them to fix defective or incorrect work performed by Richards Projects. Mr Bakker and Ms Kramer refer to an amount claimed to supply extra tiles that Mr Bakker states was related to rectification works ordered to be performed (by Richards Projects) by the Queensland Building and Construction Commission. Other items claimed include an amount for cleaning tiles in the bathroom; and electrician fees to rectify a ‘faulty timer’.
In relation to the payment made from the ‘security deposit joint account’ on 12 August 2013, Mr Bakker and Ms Kramer contend that the amount of $3,800.00 was paid into a shared bank account and that this account also attracted monthly account keeping fees. Mr Bakker and Ms Kramer agree that the sum of $3,574.00 was transferred to Richards Projects on 12 August 2013 from the joint account. Mr Bakker states however that he and Ms Kramer did not give their consent to the transfer of money on 12 August 2013 and to the account being subsequently closed (after the transfer).
Mr Richards in response to the contentions made by Mr Bakker and Ms Kramer argues that the builder made all attempts to complete work required by the Queensland Building and Construction Commission. Mr Richards submits that all of the material relied upon by Mr Bakker and Ms Kramer detailing claims for compensation and the other items were considered by the learned Member at the hearing on 29 and 30 April 2014. Mr Richards also submits that the various claims for work completed and paid by Mr Bakker and Ms Kramer was not authorised by Richards Projects and otherwise not requested by the Queensland Building and Construction Commission; and in relation to weekly compensation claimed there is no provision for this claim under the contract.
What, if any, money is payable to Richards Projects?
The issue to be determined by the Tribunal is a discrete issue relating to the amount owing under the contract after the deduction of the cost of rectification fixed in the sum of $6,469. The findings of facts made by the learned Member in relation to the costs of rectification claimed by Mr Bakker and Ms Kramer are preserved by the Appeal Tribunal having determined that Mr Bakker was prevented from presenting material that was not related to the rectification claim and in ordering that the application BDL232-12 is to be reconsidered with the hearing of any additional material.[9]
[9]Bakker & Anor v Richards Projects Pty Ltd [2012] QCATA 099.
There is no further material before the Tribunal to support the contentions made by Mr Bakker and Ms Kramer that there is money owing by Richards Projects. The various claims for weekly compensation made by Mr Bakker and Ms Kramer relate to inconvenience arising from the defective works. The other miscellaneous items claimed relate to reimbursement of money paid by Mr Bakker and Ms Kramer to rectify defective work.
The Tribunal has considered the contentions made by Mr Bakker and Ms Kramer that Richards Projects should not be entitled to claim any interest on money alleged to be owing under the contract on the basis that the builder (Richards Projects) ‘walked away’ when the Queensland Building and Construction Commission were investigating their claim for defective work performed under the contract. Mr Bakker and Ms Kramer do not dispute however that practical completion was reached on 18 January 2011 and Richards Projects issued an invoice for final payment of money owing under the contract in January 2011.
The Tribunal gave Mr Bakker and Ms Kramer an opportunity at the hearing to present their case. The material relied upon and contentions made by Mr Bakker and Ms Kramer relate to the rectification claim that was previously determined by the learned Member on 29 and 30 April 2013. To reconsider material and contentions that relate to the rectification claim in circumstances where the learned Member’s findings as to those costs (of rectification) have been preserved by the Appeal Tribunal, would be a denial of procedural fairness to Richards Projects.
The Tribunal is satisfied that as at 1 February 2011 there was money owing under the contract and will allow the amount of interest claimed by Richards Projects at the rate of 20% as provided under the contract.[10] The Tribunal has calculated the amount owing under the contract as at 1 February 2011 as $6,601.00. On 12 August 2013 there was a payment of money from the ‘joint account’ leaving a balance of $3,027.00. The Tribunal has calculated interest as follows:
Interest on $6,601.00 (period from 01/01/2011 to 12/08/13) $ 3,341.26
Interest on $3,027.00 (period from 12/08/2013 to 30/07/14) $ 579.15
Total interest payable $ 3,920.41
[10]Exhibit marked “3”.
The order will be that Mr Bakker and Ms Kramer pay the sum of $3,027.00 plus $3,920.41 in interest to Richards Projects by 4.00 pm on 2 September 2014.
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