Scott v Zooby Holdings Pty Ltd
[2011] QCAT 377
•10 August 2011
| CITATION: | Scott and Anor v Zooby Holdings Pty Ltd [2011] QCAT 377 |
| PARTIES: | Ms Melinda Maree Scott Mr Paul Raymond Dean Read |
| v | |
| Zooby Holdings Pty Ltd t/as Coast to Coast Kitchens |
| APPLICATION NUMBER: | BDL071-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kate Buxton, Member |
| DELIVERED ON: | 10 August 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The Application for relief from payment of the sum of $8,500 is refused. |
| CATCHWORDS: | Application for relief from contract payment – Whether breach of the terms of the contract – Insufficient evidence of breach |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
In this application filed 30 March 2011 the First Applicant is a property owner and registered builder and the Second Applicant is her de facto, each of whom who resided at their home in Taringa at the relevant time. The Respondent is the licensed subcontractor for kitchen joinery supply and installation at that property.
The Applicants seek relief from payment of the remaining $8,500 which would otherwise be owing the Respondent for the contract works. The contract amount was $18,500 and $10,000 has already been paid.[1]
[1] Tax Invoice HBM501 30/10/2011.
Contracting Parties
There is some conflict in the material as to the identity of the proper claimant. The Applicants are the home owner and her partner. However, at various points Ms Scott, the First Applicant, asserts in correspondence that Hutchinson Builders (J. Hutchinson Pty Ltd) is the contracting party, rather than the Applicants in person. Ms Scott appears (based on the material) to be an employee of Hutchinson Builders. A purchase order (which is not reproduced in the material) was issued by Hutchinson Builders and the Respondent invoiced Hutchinson Builders for the initial payment.
At various times Ms Scott caused correspondence to be sent to the Respondent using Hutchinson letterhead (e.g. letters to Coast to Coast Kitchens dated 3 February 2011 and 10 February 2011) and asserted that the terms and conditions of this Contract were the standard Hutchinson Builders terms and conditions (see letter dated 3 February 2011, page 2).
The Respondent asserts that he believed he undertook the work for Ms Scott personally (e.g. see email Mr Glen Robinson to Ms Scott dated 20 January 2011). The Respondent has not taken the point in these proceedings that the Applicants are not the proper claimants for the relief sought and I am therefore satisfied that they are entitled to assert that they the proper contracting parties. I note, however, that use of employer letterhead and accounts systems at times suitable to Ms Scott had the potential to lead the Applicants into difficulties. I need make no further findings on this point because, for the reasons I have mentioned, I accept the Applicants are the contracting parties for the purposes of advancing this claim.
The Claim
A number of defects have been alleged by the Applicants. These are first set out in an email from Ms Scott to Mr Robinson dated 11 January 2011 and responded to by email from Mr Robinson to Ms Scott dated 20 January 2011
Below is a summary of the alleged defects, as described by the Applicants, and Mr Robinson’s response:
| Applicants | Respondent |
| Door Detail | |
| Doors should have curved or colonial arched shape to the VJ section of the solid doors, and all other panels within the kitchen. Instead, these were manufactured as “squared off”. | No request was made for VJ colonial arched two packed doors; the quote was for VJ two packed routed doors as delivered. There was a genuine misunderstanding as to the terms of the Contract. |
| Island Bench | |
| The documents specified 1800 millilitres long island bench. The bench measure 1840 millilitres as installed. Bench requires cutting down resulting in a smaller stone overhang. | Agree that 1800 millilitres was specified and agreed to cut down to size so the stone overhang was smaller. |
| Joinery Protruding Over Wall Batten | |
| This issue was described by the First Applicant in correspondence but the First Applicant has indicated her preparedness to address it herself. | |
| Cornice | |
| The joinery cornice where cut into the windows has not been finished in an acceptance and tradesman like manner. | The Respondent has not commented on this, most likely because the First Applicant has indicated that she would remedy these works. |
| Incomplete Works | |
| · Kick panels were missing · Some shelves and supports missing · A scratched end panel to overhead cupboards | These items can each be attended to when the Respondent is permitted to return to site. |
Further letters were exchanged from the Respondent on 2 February 2011 and the First Applicant (on Hutchinson letterhead) on 3 February 2011. The Respondent claimed $6,800 inclusive of GST for works done to date and agreed to claim the balance upon completion of the “incomplete works” (including some further items not mentioned above and the reinstatement of the island bench and stone top). The Respondent notes that the Applicants informed the Respondent, on 24 January 2011, not to complete the remaining works until a mediated resolution had been attained.
The claim for $6,800 of the remaining $8,500 is made on the basis that the kitchen and, in particular, the doors as delivered and installed were sufficient to comply with the terms of the Contract. This is the issue at the heart of this dispute. Each of the other items are matters which either the Applicants are not pursuing or the Respondent has indicated a readiness and willingness to perform upon being granted access to the Property.
The question for this Tribunal is whether the colonial shaping to be routed into the solid door (at the top of each insert with VJ finish) was an essential term of the Contract, such that failure to comply strictly with it can be said to be a breach justifying termination and leading to the conclusion that no further sums are payable. Alternatively, is it a breach which sounds in damages? The Applicants are entitled to have the terms of the Contract complied with and, failing that, to receive damages for the difference between the Contract price and cost of making the works conform to the Contract.[2] In this case, the cost of replacing the doors with a squared off VJ inlay with those of the colonial patterned top to the inlay would be the appropriate measure of contractual loss, but only if failure to deliver the doors with that shape constitutes a breach of the Contract.
[2] Bellgrove v Eldridge (1954) 90 CLR 613.
The Applicants rely on a bundle of documents and photographs as the “tender documents” but not once does the First Applicant make reference to the shape of the top of the doors in any of her written communications. Interestingly, one of the drawings upon which she relies, appears to show a colonial shaping at the top of the door, which has been drawn over by the First Applicant with what appears to be a square shape at the top of the door. Therefore, the only evidence produced specifically by First Applicant would indicate that she required a squared off pattern rather than a colonial arch pattern.
In the Respondent’s email which included his quote, dated 8 November 2010, he specifies two pack routed doors to give a VJ look in the centre. This quote is completely silent as to any colonial or ornate shaping to the top of the VJ’d centre of the door. I therefore do not accept that the evidence establishes that the Applicants made a term of the Contract the supply of the colonial shaped doors. It follows, therefore, that what the Respondent has provided is not in breach of the Contract and therefore no right to damages arises.
Because the Respondent remained ready, willing and able to perform the balance of the Contract (described in the material as the “incomplete works”) and has been refused the opportunity to do so he is entitled to treat the Contract at an end and entitled to the balance of his Contract price. However, he has not claimed that amount or filed any counter application in these proceedings. The only relief sought by the Applicants in these proceedings was relief from the payment of the balance of the purchase price. I refuse to grant that relief and find that the Applicants are obliged to pay the balance of the Contract works which are owing.
Order
The Application for relief from payment of the sum of $8,500 is refused.
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