Robert Hayler v Jennie Hart
[2013] QCAT 252
•29 May 2013
| CITATION: | Robert Hayler v Jennie Hart [2013] QCAT 252 |
| PARTIES: | Robert Hayler (Applicant) |
| v | |
| Jennie Hart (Respondent) |
| APPLICATION NUMBER: | BDL114-12 |
| MATTER TYPE: | Building Matters |
| HEARING DATE: | 29 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Bevan Hughes, Member |
| DELIVERED ON: | 29 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. 2. The counter-application is dismissed. |
| CATCHWORDS: | BUILDING – Domestic Building Dispute – parties to contract – unwritten variations – no order for joinder – privity Domestic Building Contracts Act 2000, sections 9, 84 and Schedule 2 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: Robert Hayler appeared in person
RESPONDENT: Jennie Hart appeared in person
REASONS FOR DECISION
What is this Application about?
On 29 July 2010, Damien Hayler and Jennie Hart entered into a Residential Building Contract. Under the Contract, Mr Damien Hayler was to perform building work on Mrs Hart’s property located at 63 Russell Drive, Redbank Plains.
Mr Robert Hayler is the applicant and Mr Damien Hayler’s father. He claims that Mrs Hart owes $5,000 under the Contract plus $5,269 for additional work not included in the Contract.
Mrs Hart denies that she owes these amounts on the grounds that she did not agree to them and that they were not completed. She also counter-claims an amount of $31,090 as damages for breach of the Contract.
Is Mr Robert Hayler entitled to the Contract balance?
In his Application filed with the Tribunal on 28 February 2012, Mr Robert Hayler states that he wants the Tribunal to make an order for Mrs Hart “to pay the balance owing on Contract works $5000”.
During the hearing, Mr Robert Hayler and Mrs Hart each tendered a separate copy of “the Contract”. Mr Robert Hayler confirmed that he was claiming under the Contract he tendered. Both documents are dated 29 July 2010 and signed by Damien Hayler and Jennie Hart. Mr Robert Hayler is not a signatory to either document.
Even if I accept the document tendered by Mr Robert Hayler as the “Contract”, the parties to that Contract are Damien Hayler and Jennie Hart. Mr Robert Hayler is not a party to that Contract.
Mr Robert Hayler claimed that before the Contract was signed, he and Mrs Hart agreed on price and that Mr Damien Hayler would perform the work. Mr Robert Hayler adduced no evidence to support this, either by oral testimony from those alleged to be present including his wife and Mr Damien Hayler, or any written evidence such as quotes or estimates.
Mr Robert Hayler did claim that the cheque for the deposit of $10,000 was given to his wife. However, there was no evidence of to whom the cheque was made payable. I am not satisfied that the mere delivery of the cheque to Mr Robert Hayler’s wife is evidence of a Contract between Mr Robert Hayler and Mrs Hart. There are several possibilities why the cheque may have been given to Mrs Hayler and I note here that Mrs Hayler is also Mr Damien Hayler’s mother.
Mrs Hart disputed Mr Robert Hayler’s version of events and said any pre-contractual negotiations had nothing to do with Mr Robert Hayler and that he had been “outside smoking”.
Mr Richard Hart is Mrs Hart’s husband. Mr Hart was present during negotiations. Mr Hart gave sworn oral evidence that Mr Damien Hayler had made it clear that he did not want his father involved.
Based on this evidence, I am not satisfied that Mr Robert Hayler has discharged the burden of proof that he was a party to any negotiations with Mrs Hart sufficient to constitute a binding contract between them. There was no contract at this point in any event, as no consideration had passed.
The only evidence of any Contract is the written Contract dated 29 July 2010. While it appears that Mr Robert Hayler may have performed some work on Mrs Hart’s property, this does not establish him as a party to the Contract.
There is no evidence that Mr Damien Hayler signed the Contract as agent for Mr Robert Hayler.
In these circumstances, I am not satisfied that there is any privity of contract between Mr Robert Hayler and Mrs Jennie Hart entitling Mr Robert Hayler to claim under the Contract dated 29 July 2010.
Mr Robert Hayler’s claim for $5,000 pursuant to the Contract is therefore dismissed.
Is Mr Robert Hayler entitled to an amount for additional work outside the Contract?
In his Application, Mr Robert Hayler also claims an amount of $5269 for “electrical, plumbing and stormwater not included in contract price”. Mr Robert Hayler states that he and Mrs Hart “verbally agreed on these changes”.
The Contract was for an amount greater than $3,300. It is therefore a ‘regulated contract’ under the Domestic Building Contracts Act 2000.[1] I am not satisfied that Mr Robert Hayler is the relevant ‘building contractor’ under the regulated contract. This is because I am not satisfied that he carried out the work as a party to the regulated contract. This means he is not entitled to claim any additional amounts not included in the contract.
[1] Sections 9 and Schedule 2.
However, even if Mr Robert Hayler were a party to the contract, as a builder who seeks to claim any additional amounts not included in the Contract, he must comply with Part 5 of the Domestic Building Contracts Act 2000.
Because none of the variations is in writing, the Tribunal can only order recovery if there are exceptional circumstances, the building contractor would suffer unreasonable hardship and it would not be unfair to the building owner for the building contractor to recover an amount.[2]
[2] Section 84 of the Domestic Building Contracts Act 2000.
There are no exceptional circumstances. The circumstances here are that variations were raised. This Tribunal has previously determined that this is not exceptional – indeed, it is a common occurrence with builders and homeowners.[3]
[3] Ross v. Rangel [2004] QCCTB 98; cited with approval in Lida Build Pty Ltd v. Miller
(No.2) [2010] QCAT 431.
Further, no objective evidence is provided to support the amounts claimed. I therefore do not consider the evidence to support the claim to be reliable. In these circumstances, it would be unfair to the building owner for unwritten variations to be claimed where the applicant’s evidence is unreliable[4] and indeed, not even that of the building contractor.
[4] HNT Civil Construction v. Mahamoud [2013] QCAT 36.
In the absence of any evidence of exceptional circumstances and unfairness to the building owner, I am not satisfied that there is an entitlement to recovery for the variations.
Even if Part 5 of the Act did not apply, I am not satisfied that there is sufficient evidence to support that the variations had been properly quantified. Mr Robert Hayler tendered an unsigned and undated document entitled “Extra Work Agreed Upon”. However, he conceded that this document was created after the work was completed. While the document includes prices or estimates, no objective basis has been provided for them.
Mr Robert Hayler’s claim of $5,269 for the alleged additional work is therefore dismissed.
Is Mrs Hart entitled to damages from Mr Damien Hayler and Mr Robert Hayler?
During the hearing, Mrs Hart stated that if the Tribunal found that there is no contract between her and Mr Robert Hayler, then she did not wish to proceed with her Counter-Application. On this basis, there is no need for me to determine Mrs Hart’s Counter-Application. However, I will do so for completeness.
In her Response and Counter-Application filed with the Tribunal on 7 December 2012, Mrs Hart seeks orders that Mr Damien Hayler be joined to the proceedings and that Mr Robert Hayler and Mr Damien Hayler pay her the sum of $31,090 “in damages for breach of contract”.
The Tribunal has not previously ordered that Mr Damien Hayler be joined as a party to the proceedings. The Response and Counter-Application has not been served upon him. To join him as a party at this late stage of the proceedings would unfairly prejudice him. This is because he has not had the opportunity to consider and respond to Mrs Hart’s claims and any supporting evidence. As Mr Damien Nayler is not a party to the proceedings, I am not satisfied to make any orders against him.
Mrs Hart claims that Mr Robert Hayler did not complete the contract to the specifications required. She then claims Mr Damien Hayler was “unjustly enriched” by receiving payment of $12,500 “in contemplation of the completion of the contract”.
She then claims, without clarifying from whom, $6,750 “for delay in completion”, $8,000 “for a granite bench top that was not provided as required”; and $3,840 “for 3 months lost rent while the work was completed by another party”.
During the hearing, Mrs Hart said she did not wish to adduce any evidence in support of these claims against Mr Robert Hayler.
To the extent that these claims are against Mr Damien Hayler, they are not allowed given that he is not a party to the proceedings.
To the extent that these claims are against Mr Robert Hayler, they are all made pursuant to the written Contract between Mrs Hart and Mr Damien Hayler. As Mr Robert Hayler was not a party to the Contract, I find that there is no basis to them.
Mrs Hart’s Counter-Application is therefore dismissed.
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