Rooftop Brisbane Pty Ltd v O'Malveny
[2017] QCAT 237
•12 July 2017
CITATION: | Rooftop Brisbane Pty Ltd v O’Malveny [2017] QCAT 237 |
PARTIES: | Rooftop Brisbane Pty Ltd t/as Reliance Roof Restoration |
| v | |
| Vicki O’Malveny (Respondent) | |
APPLICATION NUMBER: | MCDO14-17 |
MATTER TYPE: | Other minor civil dispute matters |
HEARING DATE: | On the papers |
HEARD AT: | Wynnum |
DECISION OF: | Adjudicator Bertelsen |
DELIVERED ON: | 12 July 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – contracts for restoration and reroofing – assignment of QBCC licensee’s interest in contract – cancellation of QBCC licence – efficacy of assignment of cause of action – liquidation of licensee |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Application
By application filed 24 March 2017, Rooftop Brisbane Pty Ltd t/as Reliance Roof Restoration of 3/6 Trade Street, Ormiston (Rooftop) seeks $8,423.41 on account of new gutters, safety rails, roof cleaning, repointed roof capping, broken tile replacement and coatings at 8 Lorikeet St, Peregian Beach. The application also seeks an order for completion of works as per contract signed by the respondent, Ms O’Malveny, or alternatively an order for compensation for costs incurred by Rooftop.
By counter-claim filed 27 April 2017, Ms O’Malveny seeks, it seems, relief from payment of invoice issued to her by Rooftop, and compensation for expenses incurred having defective work rectified and damage fixed.
Background and evidence
On 1 September 2016, Ms O’Malveny signed two contracts numbered 16988 and 16989 with Reliance Industries Pty Ltd t/as Reliance Roof Restoration ABN 88153695240, QBCC Licence No. 1214303 (Reliance).
Contract 16988 for $8,000.00 was for roof restoration i.e. replacing broken tiles, pressure cleaning, repointing ridges, sealer application and painting.
Contract 16989 for $4,000.00 was for reroofing i.e. installation of new guttering and seven PVC downpipes with a 10 year warranty.
Under both contracts the estimated start date for works was 1 October 2016, with completion by 3 October 2016 subject only to public holidays, injury or weather.
On 30 September 2016 and prior to any works being commenced, Reliance entered into a deed of assignment with Rooftop whereby Reliance assigned ‘work in progress to be carried out and performed by Rooftop’. The works in progress included the benefit of any contracts yet to be performed of which Ms O’Malveny’s dual contract was one of 10. Upon completion of constructed works, 70% of defined profit was to be paid to Reliance with 30% retained by Rooftop.
Significantly, the deed stated:
The parties agree that if any customer of the Business advises it does not want its Work in Progress carried out or performed for any reason after this Agreement is signed and before such item of Work in Progress have been commenced, then that customer shall be removed from the First Schedule list and the Assignee will not be required to honour the obligations of the Assignor to that customer of the Business any longer.
Finally, the deed provided for the transfer of the registered business “Reliance Roof Restoration” from Reliance to Rooftop.
On about 6 February 2017, Reliance’s QBCC licence was cancelled. On 13 February 2017, roof restoration and reroofing commenced at Lorikeet Street. No evidence was produced to the Tribunal that Ms O’Malveny was aware firstly of Reliance’s licence cancellation. Nor was any evidence produced that she was aware of, or consented to, the assignment to Rooftop of Reliance’s interest in the contract.
On 23 February 2017, Reliance was placed in liquidation. Ms O’Malveny only became aware of Reliance’s licence cancellation and subsequent liquidation after enquiries with the QBCC. She asserted that the QBCC held no record of insurance in respect of the $12,000.00 restoration and reroofing at Lorikeet Street.
Rooftop asserts that some of the work envisaged to be performed initially by Reliance has been completed, and that monies are payable to sub-contractors. Oddly, the tax invoice No. 170323 produced to the Tribunal and dated 23 March 2017 is directed by Harrowell Family Trust t/as Reliance Roof Restoration North Coast of 23 Parkside Court, Burpengary to Reliance Roof Restoration of 3/6 Trade Street, Ormiston. It is recorded as a payment claim made under the Building and Construction Industry Payments Act 2004 (Qld).
Ms O’Malveny asserts that upon being made aware that Rooftop was, in fact, performing works at Lorikeet Street under the identical business name Reliance Roof Restoration that she refused to deal further with Rooftop, for the reason she says that such was not the entity with which she contracted and added to that, she asserted that Rooftop’s works were, as far as they went, defective. Ms O’Malveny asserted she had spent money on rectification and completion of works.
A liquidator’s letter under the letterhead of Rodgers Reidy dated 28 June 2017 was produced to the Tribunal. It was certified under the hand of D J Hambleton, liquidator, ‘I am not aware whether notice was given to Ms O’Malveny by the company (Reliance), or Rooftop Brisbane Pty Ltd in respect of the assignment’.
Conclusions
Ms O’Malveny entered into two contracts with Reliance on 1 September 2016 at which time the company was both registered and the holder of a QBCC licence. By the time works commenced on 13 February 2017, an assignment of Reliance’s interest in the two contracts had been effected and Reliance’s QBCC licence cancelled.
Ms O’Malveny was not aware of either event taking place. Shortly after, on 23 February 2017, Reliance was placed in liquidation.
No cause of action lies on the part of Rooftop Brisbane Pty Ltd as against Ms O’Malveny. The assignment from Reliance to Rooftop was effected without reference to or the consent of Ms O’Malveny.
The fact works were carried out at the Lorikeet Street premises ostensibly by Reliance Roof Restoration was misleading to the extent that Reliance Roof Restoration was simply the trading name of a totally different entity to that with which O’Malveny originally contracted.
The Tribunal concludes there is no cause of action on the part of Rooftop Brisbane Pty Ltd as against Ms O’Malveny.
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