SEQ Builders Pty Ltd v Shane Conroy
[2021] QCAT 268
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
SEQ Builders Pty Ltd v Shane Conroy [2021] QCAT 268
PARTIES: SEQ BUILDERS PTY LTD (applicant)
v
SHANE CONROY (respondent)
APPLICATION NO/S:
BDL255-20
MATTER TYPE:
Building matters
DELIVERED ON:
7 July 2021
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Senior Member Brown
ORDERS:
1. Shane Conroy must pay to SEQ Builders Pty Ltd $9,565.20 within 28 days of the date of this decision.
2. Shane Conroy must pay to SEQ Builders Pty Ltd costs fixed in the amount of $352.00 within 28 days of the date of this decision.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where the parties entered into two separate building contracts – where the respondent hired the applicant to build two patios – where the applicant issued invoices for the work – where some of the invoices remain unpaid – where the respondents allege the building work was defective – where the respondent did not file statements of evidence – whether the applicants are entitled to payment
Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 1B, s 1, s 3, s 4, Schedule 2
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
SEQ Builders undertook building work for Mr Conroy. SEQ Builders says it has not been paid by Mr Conroy for the work it performed. SEQ Builders says that it is owed $9,565.20. The claim by SEQ Builders falls for determination.
Jurisdiction
I am satisfied as to the following and make findings that:
(a)SEQ Builders is a building contractor;[1]
(b)Mr Conroy is a building contractor;[2]
(c)Mr Conroy carries on business as Super Clear;
(d)SEQ Builders and Mr Conroy entered into an agreement for the performance by SEQ Builders of domestic building work at two residences;[3]
(e)SEQ Builders undertook domestic building work;[4]
(f)The dispute between the parties is a domestic building dispute;[5]
(g)Prior to commencing the proceedings, SEQ Builders complied with the requirements of s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld);
(h)Service of the originating application was effected upon Mr Conroy;
(i)The Tribunal has jurisdiction to hear and decide the proceeding.[6]
[1]Queensland Building and Construction Commission Act 1991 (Qld), Sch 1B (Definition of “building contractor”)
[2]Ibid
[3]Statement of evidence of Leonard Watt dated 11 May 2021; Statement of evidence of James Carr dated 10 May 2021.
[4]Ibid, Schedule 1B, s 4
[5]Ibid, Schedule 2 (Definition of “domestic building dispute”)
[6]Ibid, s 77.
Findings of fact
The proceedings as commenced by SEQ Builders named Super Clear as respondent. The tribunal subsequently directed that the record be corrected to reflect that the respondent is Mr Conroy.[7]
[7]Directions made 15 April 2021.
Directions were made for Mr Conroy to file a response. On 22 February 2021 Mr Conroy forwarded to the registry a document in the form of a letter attaching three (3) text messages which also included what appears to be two photographs. Presumably Mr Conroy intended the letter to be his response. Clearly the document filed by Mr Conroy was not in the correct form.[8]
[8]Form 36.
A directions hearing was held on 15 April 2021 at which I presided. Both parties were in attendance. In the course of the directions hearing Mr Conroy was told that if he wished to pursue a counter application he would be required to file a response and counter application and pay the appropriate filing fee. It was also explained to both parties that they would be required to file statements of evidence and that, in the absence of a party requesting an oral hearing, the proceedings would be determined on the papers.
Directions were made at the directions hearing for Mr Conroy to file a response and counter application. Both parties were directed to file their statements of evidence. A direction was also made that, in the absence of a party requesting an oral hearing, the proceeding would be determined on the papers. Despite these directions Mr Conroy filed no response and counter application. SEQ Builders has filed a statement of evidence. Mr Conroy has filed no evidence. Neither party has requested an oral hearing. I am satisfied that the matter can be determined on the papers.[9]
[9]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32(2).
The evidence of SEQ Builders is:
(a)Super Clear was the principal contractor in respect of building works being undertaken at a property at Macgregor, Brisbane (the Macgregor property);[10]
[10]Statement of evidence of Leonard Watt.
(b)SEQ Builders originally provided a quote to Mr Conroy to undertake building work at the Macgregor property. That work consisted of the installation of a patio, removal of rubbish from the job site and the supply of LED downlights;[11]
[11]Ibid, Doc 1.
(c)On 28 October 2017 SEQ Builders rendered an invoice to Mr Conroy in the amount of $4,000.00 in respect of building work it performed at the Macgregor property;[12]
[12]Ibid, Doc 2.
(d)On 3 December 2017 SEQ Builders rendered a further invoice to Mr Conroy in the amount of $1,566.00 in respect of building work it performed at the Macgregor property. This invoice was rendered after the completion of the installation of the patio;[13]
(e)While the 28 October 2017 invoice was paid by Mr Conroy the 3 December 2017 invoice remains unpaid;
(f)Super Clear was the principal contractor in respect of building works being undertaken at a property at Redland Bay (the Redland Bay property);
(g)While SEQ Builders was undertaking the building work at the Macgregor property, the parties agreed that SEQ Builders would undertake building work at the Redland Bay property consisting of the construction of a patio;
(h)SEQ Builders agreed to undertake the building works at the Redland Bay property on a ‘do and charge’ rate as the design of the patio was not standard;
(i)SEQ Constructions completed the building works at the Redland Bay property in accordance with instructions provided by Mr Conroy;
(j)On 3 December 2017, following completion of the building works at the Redland Bay property, SEQ Builders rendered an invoice to Mr Conroy in the amount of $7,999.20;[14]
(k)The invoice dated 3 December 2017 remains unpaid;
(l)SEQ Builders subsequently, and unsuccessfully, sought payment from Mr Conroy for the outstanding invoices;[15]
(m)Mr Conroy has made no attempt to explain to SEQ Builders why the invoices have not been paid nor has Mr Conroy called upon SEQ Builders to attend to the rectification of any alleged defective building work.
[13]Ibid, Doc 3.
[14]Ibid, Doc 4.
[15]Statement of James Carr.
As I have noted, Mr Conroy has not filed a response in the correct form nor has he filed any statements of evidence. Nevertheless I will proceed on the basis that the document forwarded by Mr Conroy to the tribunal registry on 22 February 2021 serves as his response to the claim by SEQ Builders’ claim and his evidence.
Mr Conroy says:
(a)Mr Conroy agreed to engage SEQ Builders to undertake the works at the Macgregor property at a rate of $300.00 per day;
(b)While SEQ Builders was undertaking the works at the Macgregor property, Mr Conroy engaged SEQ Builders to undertake the works at the Redland Bay property;
(c)After the works at the Macgregor property had been completed, SEQ Builders rendered the 3 December 2017 invoice;
(d)Mr Conroy inspected the works at the Redland Bay property while SEQ Builders was still on site. He observed that 5 people ‘that like were learning backpackers and they did not know what they were doing’;
(e)Before the works at the Redland Bay property were completed ‘(t)he customer was calling me and sending photos of the poor finishes’;
(f)The cost of the works undertaken by SEQ Builders at the Redland Bay property should not have exceeded $3,000.00;
(g)Mr Conroy received complaints regarding the works at the Macgregor property concerning ‘leaking in house’. Mr Conroy subsequently undertook repair works at the Macgregor property;
(h)Mr Conroy spent 3 days undertaking rectification works at the Redland Bay property and expended an amount of $1,500.00 in respect of such works. Mr Conroy states that ‘customer [was] not paying final payment of $4,200.00 as he wasn’t satisfied with the standards of SEQ Building’;
(i)Mr Conroy does not consider SEQ Builders should be entitled to recover the amount claimed as he has ‘lost money on the two jobs they were building for Super Clear to correct their faults’.
Apart from the bald assertions in the letter, there is no evidence from Mr Conroy in relation to the following:
(a)Complaints made by third parties in relation to the building works undertaken by SEQ Builders;
(b)Details of the alleged defective building work undertaken by SEQ Builders at the Macgregor and Redland Bay properties;
(c)Details of the rectification work Mr Conroy says he undertook in respect of the alleged defects;
(d)The costs incurred by Mr Conroy in undertaking rectification work as alleged.
As to the photographs and text messages attached to the letter from Mr Conroy, in the absence of any adequate explanation as to what they mean and depict and any meaningful context I place no evidentiary weight on the attachments.
It seems uncontentious that the parties agreed SEQ Builders would undertake the works at the Redland Bay property on a do and charge basis. I understand this to be a cost plus contract. Mr Conroy’s complaint appears to be that the amount charged by SEQ Builders was excessive. He offers no evidence to support such an assertion. Mr Conroy refers to observing ‘like were learning backpackers’ at the Macgregor property job site. There is no evidence from Mr Conroy as to the relevance of this assertion as it relates to the present dispute.
Mr Conroy was given the opportunity to file statements of evidence. Mr Conroy was given the opportunity to bring a counter application against SEQ Builders. Mr Conroy has done neither.
Where the evidence of Mr Watt and Mr Carr on the one hand, and Mr Conroy on the other[16] differs, I prefer the evidence of the former. The evidence of Mr Watt and Mr Carr comprehensively and credibly addresses the history of the dealings between the parties, the agreements between the parties for SEQ Builders to undertake the building works, the nature of the building works undertaken by SEQ Builders and the subsequent failure by Mr Conroy to pay the outstanding invoices. It is relevant to note that nowhere in the letter dated 22 February 2021 does Mr Conroy assert that, apart from the contents of the text messages (which I have found cannot be given any weight), he communicated to SEQ Builders any concerns regarding the quality of the work undertaken nor made any request that SEQ Builders undertake rectification work.
[16]As noted, I proceed on the basis that the letter dated 22 February 2021 is the extent of Mr Conroy’s evidence.
I note that there is no evidence that the parties entered into a written contract for the performance of the building works. Both parties are building contractors. SEQ Builders is also a subcontractor.[17] A domestic building contract does not include a contract between a building contractor and a subcontractor.[18] Accordingly, the requirements in the QBCC Act that, to have effect, a domestic building contract must be writing, dated and signed by the parties do not apply.
[17]QBCC Act, schedule 1B, s 1.
[18]Ibid, s 3(2)(a).
I am satisfied as to the following and make findings that:
(a)On 26 September 2017, or a subsequent date, the parties entered into an agreement for the performance of building work by SEQ Builders at the Macgregor property;
(b)The building works comprised the installation of a patio, removal of rubbish and supply of LED downlights;
(c)The agreed price in respect of the works was $6,886.00 inclusive of GST;
(d)The actual price of the works was $5,566.00;
(e)SEQ Builders undertook the building works as agreed at the Macgregor property;
(f)There is no cogent or credible evidence that the works were undertaken by SEQ Builders other than in a proper and workmanlike manner, free of defects;
(g)SEQ Builders rendered the 28 October 2017 invoice to Mr Conroy in the amount of $4,000.00, which was subsequently paid;
(h)Following completion of the works at the Macgregor property, SEQ Builders rendered the 3 December 2017 invoice to Mr Conroy in the amount of $1,566.00;
(i)The 3 December 2017 invoice remains unpaid;
(j)Mr Conroy is indebted to SEQ Builders in the amount of $1,566.00 in respect of the 3 December 2017 invoice;
(k)On a date subsequent to 26 September 2017 but before December 2017, the parties entered into an agreement for the performance of building work by SEQ Builders at the Redland Bay property;
(l)The building works comprised the installation of a patio;
(m)The parties agreed that SEQ Builders would undertake the works on a cost plus basis;
(n)SEQ Builders undertook the building works as agreed at the Redland Bay property;
(o)There is no cogent or credible evidence that the works were undertaken by SEQ Builders other than in a proper and workmanlike manner, free of defects;
(p)SEQ Builders rendered the 3 December 2017 invoice to Mr Conroy in the amount of $7,999.20;
(q)The 3 December 2017 invoice remains unpaid;
(r)In the absence of evidence to the contrary, $7,999.20 represents a fair and reasonable value in respect of the building work undertaken by SEQ Builders at the Redland Bay property;
(s)Mr Conroy is indebted to SEQ Builders in the amount of $7,999.20 in respect of the 3 December 2017 invoice.
Conclusion
There will be a final decision for SEQ Builders against Mr Conroy in the amount of $9,565.20.
The tribunal has the power to award costs in building disputes.[19] SEQ Builders has been entirely successful in its claim. It is appropriate that Mr Conroy pay costs fixed in the amount $352.00 being the filing fees paid by SEQ Builders.
[19]QBCC Act, s 77(3)(h).
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