Rivergum Homes Pty Ltd v Avril Elise Baque (A Bankrupt)
[2011] QCAT 594
•29 November 2011
| CITATION: | Rivergum Homes Pty Ltd v Avril Elise Baque (A Bankrupt) and Anor [2011] QCAT 594 |
| PARTIES: | Rivergum Homes Pty Ltd |
| v | |
| Avril Elise Baque (A Bankrupt) Kenneth Charles Baque |
| APPLICATION NUMBER: | BD191-09 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 23 August 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Paul McGrath, Member |
| DELIVERED ON: | 29 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The second respondent pay to the applicant an amount of $152,170.00 as monies due and owing under the second contract within 60 days of the date of judgment. 2. The second respondent pay the costs of the applicant fixed in the sum of $64,000.00 being the applicant’s solicitor and own client costs associated with recovering or attempting to recover an amount under the second contract within 60 days of the date of judgment. |
| CATCHWORDS: | Building Contract – Second contract entered into by second respondent – Whether rights assigned from first contract to second contract – Whether applicant can sue for breach of second contract – Whether applicant has quantum meruit claim and the jurisdiction of QCAT to hear such claim |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Kennedy, Solicitor appeared for the Applicant |
| RESPONDENT: | Mr Wagner of Counsel appeared for the Second Respondent |
REASONS FOR DECISION
This is an application which was filed in the Queensland Civil and Administrative Tribunal on 8 February 2010 by Rivergum Homes Pty Ltd (the applicant) against Avril Elise Baque (the first respondent) and Kenneth Charles Baque (the second respondent).
The second respondent filed a response and or counter application on 3 March 2010, the first respondent having been made bankrupt prior to the commencement of proceedings.
In the application the applicant sought payment of an amount of $159,000.00 plus damages and interest and costs in relation to a contract entered into between the applicant and the second respondent dated 20 November 2008.
The claim states that the first respondent was the registered proprietor of a property described as Lot 9 on registered plan 20668, county of Churchill parish of Grandchester situated at 38 Heise Road, Hattonvale in the state of Queensland on or from about 14 June 2006 to on or about 9 February 2009.
By agreement in writing bearing date 17 October 2008 made between the first respondent and the applicant (Rivergum) agreed to construct at the site a lowset lightweight construction being a transportable home.
The contract which was subsequently amended provided for delivery and installation of the Midas Urban transportable home as displayed at Lot 64 Lear Jet Drive, Caboolture commencing on or about 20 November 2008.
It was an express term of the contract by item 5 of schedule 1, that the contract price would be $162,000 (inclusive of GST).
The following were expressed terms of the general conditions:
(a)By clause 1.2: the owner must pay the contract price adjusted by any additions or deductions made under this contract, in the manner and at times stated in this contract;
(b)By clause 25.2: on reaching practical completion the builder must give the owner:
(a)A notice of practical completion stating the builder’s opinion of the date of practical completion; and
(b)The final claim;
(c)By clause 25.3: subject to clause 25.4 the owner must within 5 working days of receiving the final claim pay the amount of the final claim to the builder;
(d)By clause 25.9: the date stated in the last notice of practical completion is deemed to be the date of practical completion unless within 5 working days of receiving the last notice practical completion the owner gives the builder written notice:
(a)Disputing the date;
(b)Detailing the reasons why the date is disputed;
(e)By clause 33.1: if the owner does not pay any amount owing to the builder in full by the due date then the owner must pay the default interest on such amount that is unpaid from time to time;
(f)By clause 34.1: the owner must pay to the builder any debt collection costs, including any legal fees on a solicitor and own client basis, associated with the recovering or the attempted recovery of the amount under this contract.
On or about 25 February 2008 the first respondent paid to Rivergum the deposit amount in the sum of $3,000.00. This related to an earlier contract between the parties relating to a different relocatable home and it was agreed that the deposit would be transferred to the Midas Urban relocatable home which was to be delivered to the respondent’s site.
[10] The application in the particulars state that in the performance of the contract Rivergum caused the varied works of the site to be commenced on or about 19 November 2008 and the varied works were completed on or about 20 December 2008. Upon completion of the varied works Rivergum delivered to the first respondent a notice of practical completion stating Rivergum’s opinion of the date of practical completion and the final claim.
[11] By tax invoice dated 19 February 2009 the applicant delivered to the solicitors acting on behalf of the first respondent an invoice stating that the date of practical completion was 20 December 2008 and by 27 February 2009 the amount of $159,000 became due and owing from the first respondent to the applicant. In breach of clause 25.3 of the contract the first respondent failed to pay Rivergum $159,000 on 27 February 2009 or at all hence the applicant claims the said sum as monies due and owing pursuant to the contract.
[12] In relation to the claim against the second respondent, Mr Kenneth Charles Baque, the claim states that Mr Baque, the second respondent, advised Rivergum in or about late October 2008 that he was to become the registered owner of the site. On 18 December 2008 the respondent executed the transfer to transfer the site to the second respondent and from 9 February 2009 the second respondent was the registered owner of the site.
[13] On the basis that the first respondent was transferring the site to the second respondent and that the second respondent was to become the owner of the site the applicant entered into an agreement in writing bearing date 20 November 2008 with the second respondent whereby the applicant agreed to construct on the site the varied works as previously defined.
[14] It was an express term of a second contract where item 5 of schedule 1 that the contract price would be $162,000 inclusive of GST and there were similar express terms and general conditions of a second contract as contained in the first contract.
[15] The particulars go on to state that a tax invoice was delivered to the solicitors acting on behalf of the second respondent in accordance with the second contract and by the second respondent failing to pay a sum of $159,000 on 27 February 2009 or at all. The second respondent was in breach of the second contract and the applicant was entitled to be paid in the sum of $159,000 as monies due and owing pursuant to the second contract plus interest plus costs.
[16] In the defence of the second respondent which was filed on 3 March 2010, the second respondent admitted certain paragraphs of the amended statement of claim, did not admit certain paragraphs of the statement of claim and denied certain other paragraphs. The second respondent states that no agreement was entered into as alleged or at all, but if the alleged contract is a domestic building contract within the meaning of the Domestic Building Contracts Act 2000, then the alleged contract is a regulated contract within the meaning of the Domestic Building Contracts Act 2000, but as the applicant did not sign the alleged contract, by operation of section 30 of the Domestic Building Contracts Act 2000 the alleged contract is of no effect.
[17] The second respondent states that the deposit was paid by the first respondent and not by the second respondent and it was in relation to the contract between the applicant and the first respondent only.
[18] The second respondent states that there was no contract or effective contract between the applicant and the second respondent, that no money became due and payable by the second respondent accordingly and no interest or costs are payable by the second respondent.
[19] The Trustee in Bankruptcy of the first respondent had previously filed submissions in the Tribunal stating that the first respondent had lodged a debtors petition that was accepted by the Official Receiver on or about 19 June 2009, and that a trustee was subsequently appointed by the Official Receiver to be the trustee of the first respondent’s bankrupt estate. It was subsequently submitted that the applicant is precluded from taking any steps in these proceedings in relation to the first respondent and hence the proceedings related basically to the second respondent.
[20] At the hearing of the matter on 23 August 2011 Mr John Hadden gave evidence on behalf of the applicant. Mr Hadden at the time of the hearing was the building operations manager of the applicant and he had previously provided statements dated 23 September 2010 and 27 May 2011. These statements were read into the record.
[21] Mr Hadden stated that after he was informed by the second respondent by telephone on or about 15 November 2008 that the second respondent was to become the owner of the site and that he should have a contract with the applicant for works at the site. Two copies of the contract documents were issued in the name of Kenneth Charles Baque in identical terms of the contract issued to the first respondent and were posted to the second respondent for execution and return to the applicant. This was done on about 18 November 2008. On 25 November 2008 the applicant received the contract documents executed by the second respondent and dated 20 November 2008.
[22] The second contract was not executed by the applicant as Mr Hadden said he was awaiting advice of the transfer of the site to the second respondent which, despite demand, the second respondent failed to provide. On or about 20 December 2008 the applicant caused the works of the site to be completed, the dwelling having been transported from Caboolture to Hattonvale was permanently fixed on the site by the applicant and then ceased to be a transportable home and was fixed to permanent foundations with the required site loan tie downs.
[23] On or about 20 December 2008 the applicant and the first respondent agreed for the applicant to arrange to rectify minor defects early in January 2009.
[24] On or about 24 January 2009 the applicant met with the second respondent on site and the second respondent agreed to allow the applicant access to the site for 6 days from 11 February 2009 to carry out the defects rectification works.
[25] On 11 February 2009 the applicant received a letter from the solicitors for the respondent alleging that defects and damage made the dwelling uninhabitable and that the construction was be completed in a timely manner and suggested that such alleged conduct amounted to repudiation of the contract. The letter stated that their client accepted the alleged repudiation and declared the contract at an end. On 12 February 2009 the second respondent refused the applicant any further access to the site to complete the rectification works and continues to refuse to allow the applicant access to the site to carry out those works.
[26] On 20 February 2009 the applicant’s solicitors responded to the letter from the respondent’s solicitors denying that there had been any repudiation by the applicant and advising that practical completion had occurred on 20 December 2008 and enclosed an invoice by way of final claim.
[27] Mr Hadden stated in evidence that the cost of transportation, construction and assembly of the home was $128,522.00 including GST plus a 20% builders margin totalling an amount of $154,227.00 He said that the relocatable home can be removed and is no longer a transportable home, that the resale price was currently approximately $135,000.00 plus approximately $38,500.00 to remove the home.
[28] Mr Hadden stated that the plans for the house were redrawn in the name of the second respondent, that the owners were responsible for the provision of power, electricity, gas and telephone and that any defects were caused during transportation of the dwelling. Mr Hadden indicated that approximately $3,000-$3,500 would have been required to fix the defects at the time of construction and it was agreed that an amount of $6,800 at the experts conclave was a fair and reasonable amount in respect of the defects required to be completed. Mr Hadden was shown quotes in relation to the potential removal of the house from the property of approximately $2,000 and he indicated that this was not a realistic figure having regard to the fact that the house had been fixed to the base and that it would cost far more than the amount quoted to remove the house from the property.
[29] The first respondent, Mrs Avril Baque had caused to be filed in the Tribunal a statement dated 19 October 2010. Mrs Baque stated that she was the first respondent and that she was the registered owner of the relevant property at the time she signed a contract with Rivergum Homes on 15 February 2008 for the provision and construction of the “Genesis” home.
[30] The first respondent stated that in or about May 2008 the applicant advised the cost of steel had increased significantly and the costs of building a relocatable home on the land had increased. She stated the applicant suggested that she buy a house to be constructed on site, and following the advice of the applicant the first respondent stated that she signed a variation to do so in or about May 2008. In October 2008 it was agreed that a display home (the Midas) from the Caboolture site would be transported to the Hattonvale property to enable the house to be completed prior to Christmas 2008. The first respondent states that at no time did she ever terminate or agree for the applicant to terminate her contract of 17 October 2008 in relation to the Midas Home and that she does not believe that the contract was ever terminated. The first respondent also states that she never agreed to the applicant transferring her deposit of $3,000 to the second respondent’s purported contract.
[31] The second respondent in a statement dated 20 October 2010 states that he made an offer to the applicant on 20 November 2008 to purchase the Midas Home. The offer was made on the same terms as those of the first respondent in that the contract dated 17 October 2008. He states that the offer was never accepted by the applicant as he never received the contract signed by the applicant and was not aware if the contract was signed.
[32] The second respondent states that he denies that he paid any deposit under the contract. He understood that the deposit was paid by his wife in February 2008 under her contract and he is not aware of any agreement by her to apply her deposit to his purported contract.
[33] The second respondent was called to give evidence. He stated in evidence that he had informed the applicant that the land was to be transferred into his name pursuant to a property settlement between him and his wife. He said that he was informed that he would have to sign a new contract. The second respondent stated that he had sought finance in order to buy out his wife (the first respondent) and he knew that he would not receive additional finance to complete the contract between the first respondent and the applicant or himself and the applicant. He stated that he had told the applicant’s workmen that they were not to do any more work as the house was to be taken away. He told the workmen “tell your boss I don’t want the house and I’m not going to pay for it”. He stated that he had told his wife that he did not want the house and he was going to build his own house later on.
[34] The second respondent indicated that his wife had wanted the house ready for Christmas as family was coming to visit and he says that he was pressured into signing the second contract. He stated that he could only get enough finance to buy out his wife in respect of the land, not the house and he made no attempt to obtain finance with respect to the house.
[35] The second respondent stated that he accepts the cost of the defects at $6,380.00. He agreed that he attempted to have plumbing and electricity connected and on advice of his lawyers he didn’t let the applicant back into the premises to remedy the defects. He did not inform the applicant of a change of ownership of the property.
[36] The Tribunal sought submissions in writing from both parties and these were provided to the Tribunal.
[37] The second respondent in his submissions made submissions in relation to whether he was indebted or liable for damages by way of a contract or otherwise by way of the applicant’s purported quantum meruit claim as well as whether the Tribunal had jurisdiction to hear and determine a quantum meruit claim.
[38] The second respondent submitted that the reference to “the owners successors and permitted assigns” in clause 38.1 of the contract of 17 October 2008 means that any assignment can not be valid unless there is due permission by the parties. As there was no permission between the applicant and the first respondent as to the second respondent being an assignee and as the first respondent never gave consent in writing to the contract to be assigned, her contract of 17 October 2008 was never terminated. As the first respondent did not give consent for the transfer of the deposit of the purported contract with the second respondent there was no assignment of any rights under the first contract to the second respondent.
[39] The second respondent submitted that section 85(1) of the Domestic Building Contracts Act 2000 provides that the building contract does not give the building contractor an interest in land of a resident owner for the Land Title Act 1994, section 122.
[40] The second respondent submitted in relation to the second contract dated 20 November 2008 that pursuant to section 30 of the Domestic Building Contracts Act 2000 “a regulated contract is effect only if it is signed by the building contractor and building owner (or their authorised agents)”. Furthermore section 92 of the same Act states “unless the contrary intention appears in this Act, the failure by a building contractor to comply with the requirement under this Act in relation to a domestic building contractor to comply with the requirement under this Act in relation to a domestic building contract does not make the contract illegal, void or unenforceable”.
[41] It is submitted on behalf of the second respondent that when sections 92 and 30 are read together the position in relation to the contract of 20 November 2008 is that not only, by section 30, is it of no effect, but by section 92 it is illegal, void or unenforceable.
[42] In relation to the quantum meruit jurisdiction of QCAT the submissions referred to a decision of Venemour v Reynolds (2003) QCCTB 71 where it said at paragraph 228 that section 30 of the Domestic Building Contract Act 2000 did not preclude a quantum meruit. It was submitted that jurisdiction was assumed by the Tribunal in that case. In paragraph 188 in Venemour reference was made to Mostia Constructions Pty Ltd v Lavivilo Pty Ltd (1994) QDR 55 with it merely being noted that “in the event that any agreement is rendered void or illegal, quantum meruit claims may proceed where work has been performed”. It is submitted on behalf of the second respondent that other QCCT and QCAT decisions have proceeded on the belief that the Tribunal has quantum meruit jurisdiction without reference to any actual or enabling statutory source.
[43] It was submitted that the Supreme Court in Mostia Constructions did have jurisdiction to make a quantum meruit award (common law) given the plenary and unlimited jurisdiction of the Supreme Court. By contract, other bodies, that is to say inferior Courts and, needless to say, tribunals are confined by statute as regards to jurisdiction.
[44] As regards to tribunals, in Frazer Property Developments Pty Ltd v Summer Field (2005) QCA 134 Williams JA stated at paragraph 26 “statutes creating specialist Tribunals usually define their jurisdiction with some particularity if only because they only have such jurisdiction as it is expressly conferred.”
[45] The second respondent submits that section 77 of the QBSA Act refers to various types of remedies or matters as to which the remedy might be given yet, there was nothing expressly stated by way of any power to award a quantum meruit. Whilst section 77(2)(a) of the Act enabled a payment of “an amount found to be owing” the scope of such works would be confined to a specific amount agreed. By contrast a quantum meruit, inter alia, requires an independent and reasonable valuation of works and materials said to have been provided by one person to another.
[46] By section 77(2)(d) of the QBSA Act ie the power to order restitution it might be thought that a quantum meruit claim comes within that section, yet according to the submissions not only does Fraser Property Investments Pty Ltd v Summer Field require clear and express intention as such, but it is submitted that it must be appreciated that quantum meruit is not only a remedy, but most notably a fundamental old law clause of action, and that section 77 of the QBSA Act does not endow QCAT with actions inpersonam at common law or in equity, and consequently there are no express words which include or can be construed as incorporating quantum meruit in section 77 of the Act or in another other enabling Act or provision.
[47] It was submitted that for an inferior tribunal to exercise and apply all necessary power, that power must be clearly evident of the statute set to confer it and reference was made to the decision of the President of QCAT, Alan Wilson J in Batwing Resorts Pty Ltd v Body Corporate for Liberty on Teddar CTS 27241 [2011] QCAT 277.
[48] It was submitted that modern day notions of “restitution” or “unjust enrichment” underlie or explain all causes of action such as quantum meruit, if such concepts are not causes of action in their own right. A reference was made to the High Court decision of Farah Constructions Pty Ltd and Others v Say – Dee Pty Ltd (2007) 230 CLR 89 page 95 where the Court stated “there is no overarching principal of law in Australia that a party who is “unjustly enriched” by receipt of the benefit of the expense of another party must make restitution to that other party in respect of that benefit”.
[49] The second respondent submits that even if it is found that QCAT has jurisdiction in respect of a quantum meruit claim what must be kept in mind is the focus or make up of such claim. It is submitted that the value of price of the dwelling as allotted at the time of the contract or any possible request can not be included in an assessment. It was submitted that if there was a restitution in power in section 77 of the QBSA Act then it is appropriate to assess an overall lesser value bearing in mind the evidence as to the questionable work of the dwelling in the first place.
[50] The Tribunal had sought submissions from the applicant in respect of the retail price of the Midas transportable home as at December 2008. The evidence was that its retail price would have been $164,930 inclusive of GST but excluding the cost of building materials, transportation and complexity of the home.
[51] The applicant submitted that the retail price of the homes including transportation within 100km of the Caboolture yard building approvals and complex as at December 2008 would have been $186,055 inclusive of GST. The first and second respondents were given a discount of $24,055 inclusive of GST for the home given the home having been a display home for more than 12 months prior to the purchase as the home was constructed in or about December 2007.
[52] The applicant in its submissions in response submitted that the applicant was not required to consent to the assignment from the first respondent to the second respondent as it made no difference to the applicant who was the owner of the site and for whom the relocatable home was to be installed. By virtue of section 62(1) of the Land Title Act 1994 “on registration of an instrument of transfer for a lot or an interest in a lot, or the rights, power, privileges and liabilities of the transfer or in relation to the lot vessed in the transferee”.
[53] From 9 February 2009 the second respondent became the registered owner of the site and therefore the liability of the first respondent under the contract vested in the second respondent as the second respondent was deemed to be the owner under the contract being the successor entitled to the site.
[54] Section 62(4) of the Land Title Act 1994 does not have the effect of confining the definition of “rights” to those which exist under a mortgage or lease but defines “rights” in relation to those particular instruments. Further, it is submitted, there is no definition of “liabilities” under the Land Title Act 1994 in context of section 62 therefore, liabilities, given its ordinary meaning which includes legal responsibilities arising by entering into a contract. It is submitted therefore that section 62(1) of the Land Title Act1994 applies to liabilities arising under contracts in relation to a particular lot, and will result in the vesting of the liabilities of the first respondent under the contract in the second respondent.
[55] In relation to the second contract the applicant finally executed the second contract on 16 February 2011. Therefore there was compliance with section 30 of the Domestic Building Contracts Act 2000 which provided “a regulated contract has effect only if it is signed by the building contractor and building owner (or their authorised agents)”. The second contract will be a regulated contract under the Domestic Building Contracts Act 2000 as it is a domestic building contract which has a contract price over the prescribed amount of $3,300, and therefore the second contract is required to comply with section 30 of the Domestic Building Contracts Act 2000. It was submitted that it is immaterial when the contract was signed by the applicant, as the second contract was signed by the party to be bound, being the second respondent.
[56] In relation to the quantum meruit jurisdictional issue, it is submitted by the applicant that it was an agreed fact at the compulsory conference held on 25 February 2011 that the issue of the Tribunal’s jurisdiction to hear a claim based on quantum meruit was to be decided as a preliminary issue on the papers.
[57] At the request of the second respondent at the conference on 25 February 2011 the Tribunal directed, inter alia:
A jurisdiction of the Tribunal to hear a claim in this matter based on quantum meruit shall be determined as a preliminary issue on the papers “a preliminary point”.
The second respondent shall file in the Tribunal two copies and deliver to the applicant and to the solicitor for the Trustee and bankruptcy one copy of his submissions on the preliminary point by 4pm on 18 March 2011.
The applicant shall file in the Tribunal two copies and deliver to the respondents one copy of its response by 4pm on 8 April 2011.
The second respondent shall file in the Tribunal two copies and deliver to the other parties one copy of any reply by 4pm on 22 April 2011.
[58] On 21 March 2011 the solicitors for the second respondent wrote to the applicant and to the Tribunal and advised that will not proceed with the application to seek an order as to whether the Tribunal has equitable jurisdiction and the second respondent never provided to the applicant any submissions in accordance with paragraph 2 of the directions.
[59] It is submitted by the applicant for the second respondent have an opportunity to obtain a decision on the issue of whether the Tribunal has jurisdiction in relation to quantum meruit claim as a preliminary point prior to the hearing and failed to do so at its own election.
[60] If it were found that the Tribunal did not have the requisite jurisdiction prior to the hearing, the applicant would then have been able to transfer its claim in quantum meruit to the Supreme Court under section 52 of the QCAT Act 2009. By electing not to resolve the issue of jurisdiction as a preliminary point, either prior or at the commencement of the hearing, the second respondent may deprive the applicant of the right to pursue its claim and different jurisdiction by operation of the doctrine of estoppel.
[61] It is submitted that the second respondent should therefore be prevented from raising this issue after the hearing, and should be deemed by its express actions at the compulsory conference on 25 February 2011 to have conceded that the Tribunal does have jurisdiction in respect of such a claim.
[62] The applicant further submitted in any event that the Tribunal does have jurisdiction in relation to quantum meruit claims and has awarded damages by way of quantum meruit of a number of occasions since its inception.
[63] The submission is that the Tribunal’s jurisdiction lies in section 9(1) of the Queensland Civil and Administrative Tribunal Act2009 which gives the Tribunal jurisdiction to deal with matters that it is empowered to deal with under the QCAT Act or an enabling Act.
[64] Section 77(1) of the QBSA Act confers jurisdiction of the Tribunal to determine a building dispute if there were such a dispute in existence the Tribunal has jurisdiction to hear the matter of the dispute. The dispute between the parties is properly classed as a building dispute within the meaning of section 77(1) of the QBSA Act as it is a “domestic building dispute” between a building owner and a building contractor relating to the performance of reviewable domestic work.
[65] It is submitted that a claim in quantum meruit can be categorised as a “building dispute” within the meaning of section 77(1) of the QBSA Act as it concerns the performance of reviewable domestic work.
[66] The applicant’s claim it is submitted is advanced on a number of different grounds, one of which being quantum meruit. Reference was made to the statement of Justice Alan Wilson in SCV Group Ltd v Body Corporate for Parkview Gardens CTS 24525 (2011) QCAT 299 where his Honour stated “it is not logical that a party should be compelled to bring the proceedings in QCAT for one part of its claim pursuant to the exclusive jurisdiction invested in it under section 77(1) of the QBSA Act but obliged to pursue an alternative remedy having an obvious connection with the original relief sought in another jurisdiction”.
[67] It is submitted that section 3(b) of the QCAT Act provides that one of the objections of the QCAT Act is to “have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick”. An interpretation of this jurisdiction as applying to claims in quantum meruit would best achieve the Tribunal’s purpose of dealing with matters in such a manner.
[68] It is submitted that section 77(1) of the QBSA Act confers jurisdiction of the Tribunal to deal with claims relating to building disputes and section 77(2) of the QBSA Act deals with the relevant remedies and may be ordered in such cases one of which is to allow the Tribunal pursuant to section 77(2)(d) to order restitution in matters in which it has jurisdiction. The concept of restitution is founded on the principals of unjust enrichment which is the foundation for a claim in quantum meruit as stated by the High Court in Pavey and Matthews v Paul (1987) 61 AOR 577 at 604 per Deane J.
[69] It is submitted that in relation to Fraser Property Development Pty Ltd v Summer Field that this was a case that turned on its own unique facts. In that case there was no jurisdiction to hear the dispute between the developer owner and the Local Council as work done by the Local Council on its behalf is especially excluded from the definition of “Tribunal work” under section 76(1)(m) of the QBSA Act.
[70] In this case the dispute between the parties relates to the erection and construction of a building, or the relocation of a building which constitutes “Tribunal work” within the meaning of section 75(1)(a) and (d) and section 75(2) of the QBSA Act. The dispute does not fall within any of the exclusions to the definition of “Tribunal work under section 76 of the QBSA Act therefore, the Tribunal will have jurisdiction to hear and determine quantum meruit claims.”
[71] It is submitted by the applicant that the works were performed at the request of the second respondent by the second respondent contacting the applicant and advising that the property was to be transferred to him and his signing and returning of the second contract to the applicant on 20 November 2008 and his presence on site when dealing with the applicant and having his lawyers write to the applicant referring to the applicant’s contract with their client, the second respondent. In relation to the benefit and or acceptance thereof as an element of a quantum meruit claim it is submitted that if the majority of judgements in Pavey make clear what is the benefit in the hands of the defendant must be judged objectively from the position of the defendant. There is no need for a benefit to be of a purely economic kind or one which is capable of being reduced to a monetary value. It is submitted in this case that the benefit confirmed by the second respondent is the use and enjoyment of the relocatable home. No evidence has been provided to the Tribunal to the effect that the relocatable home has detracted from the value of the site by the second respondent and given that there was no need for a benefit to be of an economic kind this is not a relevant instauration.
[72] It is submitted from the second respondent’s position he has received the benefit of the relocatable home on the site, as a dwelling, whether or not the relocatable home has in fact been used as such the evidence of a joint experts conclave was to agree an amount to rectify defects of $6,830 which the parties agreed at the compulsory conference on 25 February 2011 was an agreed fact. It is submitted that the contract and the second contract both provided with connection of services such as plumbing and electrical were the owner’s responsibility and if the dwelling is uninhabitable or has reduced in value it is due to the second respondent’s own neglect.
[73] The element of the value of the value of benefit under quantum meruit is the fair and reasonable remuneration or compensation for the benefit actually or constructively received.
[74] The value of the benefit will be what the defendant would have had to pay had the benefits been conferred under a normal commercial agreement being remuneration calculated at a reasonable rate for work actually done and the fair market value of materials supplied.
[75] In this case it is submitted that the contract price is evidence of the value the parties attributed to the benefit and provides a guide to the reasonableness of the remuneration claimed. It is submitted that the balance contract price of $159,000 ought to be accepted by the Tribunal as the value of the benefit. In relation to the issue of whether or not builder’s margins should apply the Victorian Court of Appeal in the decision of Sopov v Kane Constructions Pty Ltd (No 2) 2009 VSCA 141 has decided that builders margins consistent with a claim in quantum meruit and it would have been an amount that the defendant would have had to pay to any builder had the benefits been conferred under a normal commercial arrangement.
[76] It was submitted that should the Tribunal find in the applicant’s favour on the basis of contract the applicant’s sought relief in an amount of $152,170 being the balance contract price of $159,000 less the cost of defects of $6,830 as monies due and owing under the contract or second contract or alternatively damages under the contract or second contract in the same amount together with interest at the contract rate of 14.59% from 27 February 2009 to a date of judgment and costs pursuant to the contract or the second contract, being the applicant’s solicitors own client costs associated with recovering or attempting to recover the amount under the contract or second contract.
[77] It was submitted that should the Tribunal find in the applicant’s favour of the basis of quantum meruit the applicant seeks an amount of $152,170 upon quantum meruit or alternatively $147,397.42 being $154,227.42 less $6,830 upon a quantum meruit and costs in the amount of $64,990.47 or such other amount the Tribunal deems appropriate.
[78] In relation to the question of costs the applicant submits that it is in the interests of justice for the Tribunal to order the second respondent to pay the costs of the applicant in this proceeding as throughout the proceeding the second respondent has acted in a way that unnecessarily disadvantaged the applicant by failing to comply with directions of the Tribunal in a timely manner and vexatiously conducting the proceedings.
[79] In particular in relation to the latter claim the second respondent had brought an application for miscellaneous matters dated 24 November 2010 that Mr Hadden be disqualified as an expert witness which application was misconceived and utterly dismissed by the Tribunal and the issue of whether or not the Tribunal had jurisdiction to hear quantum meruit claims was allegedly to be dealt with as a preliminary point on the papers in February 2011. On 21 March 2011 the second respondent advised the parties that the second respondent would not be making any submissions in relation to this issue thereby causing the hearing of the matter be further delayed and subsequently the second respondent in submissions sought to raise again the question of the jurisdictional issue of the Tribunal to hear quantum meruit claim notwithstanding that it had previously indicated that it would not be making any submissions in relation to the issue.
[80] In coming to its decision the Tribunal is grateful for the various submissions provided by the legal representatives for both parties.
[81] The Tribunal finds that the second respondent contacted the applicant in mid November 2008 informing the applicant that he was to become the registered owner of the site upon which the relocatable home was to be constructed and requesting that he be provided with a contract in respect of the home in lieu of the contract of the first respondent. The Tribunal finds that the applicant forwarded a further contract in identical terms to the first contract to the second respondent which was executed by the second respondent and returned to the applicant.
[82] It is clear that the first respondent executed a transfer to transfer the site to the second respondent on or about 18 December 2008 and that this transfer was registered on 9 February 2009. The Tribunal finds that as and from that date, 9 February 2009 the second respondent became the owner of the site and the liability of the first respondent under the contract vested in the second respondent. The Tribunal finds that the second respondent was well aware of his rights and obligations under the second contract even to the extent that he informed the applicant’s workmen on site that he didn’t want the premises and he was not going to pay for it well knowing that he did not have the appropriate funds to pay out both his wife in her property settlement and the applicant for the premises erected on his now land.
[83] The Tribunal is satisfied that the second respondent was in breach of the contract entered into between himself and the applicant notwithstanding that the contract was not signed by the applicant until much later.
[84] In respect of whether in the alternative the applicant is entitled to remuneration from the second respondent in respect of the works on a quantum meruit basis. The Tribunal does not have to exercise its discretion in determining this issue having found that the applicant is entitled to succeed in respect of a breach of contract by the second respondent. However the Tribunal takes notice of various other claims dealt with in the Tribunal since its inception and prior by its predecessor the QCCT, and finds that the provisions of section 77(1) and section 22(2) of the QBSA Act appear to enable the Tribunal to order restitution in matters over which it has jurisdiction which would include a claim in quantum meruit in the appropriate case.
[85] In relation to the issue of costs the Tribunal finds that the applicant should be entitled to costs by virtue of the attitude of the second respondent during the course of the proceedings. Regarding the question of interest, this is a discretionary issue and in the circumstances of the case the Tribunal declines to make any award of interest in this particular case. The orders of the Tribunal will be as follows:
The second respondent pay to the applicant an amount of $152,170.00 as monies due and owing under the second contract within 60 days of the date of judgment.
The second respondent pay the costs of the applicant fixed in the sum of $64,000.00 being the applicant’s solicitor and own client costs associated with recovering or attempting to recover an amount under the second contract within 60 days of the date of judgment.
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