Shane v Kammerlocher - [2013] QCAT 134

CITATION:

Shane v Kammerlocher [2013] QCAT 134

PARTIES:	Ricki Shane (Applicant)
v
Alexander Kammerlocher t/as Render Meister (Respondent)

APPLICATION NUMBER:

BDL312-11

MATTER TYPE:

Building matters

HEARING DATE:

26 June 2012 (substantive application)

HEARD AT:

Brisbane

DECISION OF:

R M Clifford, Member

DELIVERED ON:

9 April 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

The application for miscellaneous matters by Alexander Kammerlocher and Rendermeister Pty Ltd is dismissed and the amended order and reasons stand.

CATCHWORDS:

BUILDING DISPUTE – order made – order amended to correct parties – respondent disputes correct parties.

Render Meister Pty Ltd v Macol Pty Ltd & Anor [2013] QCAT 91

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

On 14 October 2011 the Tribunal received an application from Ricki Shane Sambrooks concerning a building dispute.
The application listed Alexander Kammerlocher and Render Meister Pty Ltd as the respondent under the respondent part of the application form. It further noted the respondent held QBSA licence No 1146575.
In the response/counter claim received on 28 November 2011 Render Meister Pty Ltd was listed as respondent. No details were given concerning the company in Part B - address for notices part of the response. The response was signed Kammerlocher.
Attached to the response was a copy of an Adjudication decision made in favour of Render Meister Pty Ltd (ABN 62 146 389 394) against Mr Sambrooks pursuant to the Building and Construction Industry Payments Act 2004.
Various statements and other documents were filed, including a statement dated 25 April 2012 and signed by ‘Alexander Kammerlocher (Render Meister)’.
The matter was heard before me on 26 June 2012. Mr Kammerlocher attended. No issues were raised about the identity of parties at hearing.
Following the hearing I made an order on 10 July 2010 that Render Meister Pty Ltd pay Ricki Shane Sambrooks the sum of $1 041.80 by 31 July 2012.
On 7 November 2012 the Tribunal received a request from Mr Sambrooks requesting that the respondent be amended to reflect Alexander Kammerlocher as the respondent as Render Meister was a trading name without funds to meet the order.
On 28 November 2012 I ordered that the original decision and order be amended to reflect Alexander Kammerlocher trading as Render Meister as respondent. I was satisfied that the quotation dated 21 November 2009, which formed the documentary basis of the building dispute, although provided on paper entitled ‘Render Meister’ neither indicated a company name nor number. Furthermore a licence search dated 14 November 2012 indicated Alexander Kammerlocher trading as Render Meister held the QBSA licence on the quotation.
On 31 January 2013 the Tribunal received an application for miscellaneous matters requesting that the amended order be vacated, that an opportunity be made for submissions by the parties and that the application be listed for hearing on the papers.
By directions dated 26 February 2013 the Tribunal sought submissions.
Mr Kammerlocher submits he was denied natural justice in the making of the amended order as it was made without notice and says he was not a party to the hearing on 26 June 2012.
Mr Kammerlocher submits Render Meister is a company and provides a one-page extract from the Australian Securities and Investments Commission, which indicates that Render Meister Pty Ltd, ACN 133 115 045, is a registered proprietary company limited by shares.
Mr Kammerlocher attaches a further copy of the BICPA Adjudication decision.
Mr Kammerlocher seeks that the Tribunal rehear the matter or vacate the amended order.
Mr Sambrooks submits the amended order should remain as it has been paid and that the submissions of Mr Kammerlocher were received eight minutes after the due date and contained errors.
Mr Sambrooks also submits there was no actual building contract but rather a quote that neither specified company, company number, business number or personnel. Rather, Mr Sambrooks submits, it lists a QBSA licence for which a licence search indicates Alexander Kammerlocher trading as Render Meister as holder of the licence.
Mr Sambrooks further submits the first payment for the works was made out by cash cheque for $5 000.00 as requested by Alexander Kammerlocher.
Mr Sambrooks submits Mr Kammerlocher has a duty to pay the judgement either personally or as a director of the company.
The Tribunal is satisfied that based on the submissions and documents provided Alexander Kammerlocher, trading as Render Meister, is the correct party to the dispute.
Mr Kammerlocher was the main person involved with discussions with Mr Sambrooks concerning the works. Mr Kammerlocher provided the quote. The quote does not contain any company details. Apart from the name Render Meister it also contains no business details. The quote is signed from ‘Alex’ and provides Mr Kammerlocher’s personal QBSA licence. Mr Sambrooks paid Mr Kammerlocher a cash cheque for the deposit.
Whilst the tax invoice dated 19 July 2011, printed on the same Render Meister quotation paper, includes an Australian Business Number it does not refer to Render Meister Pty Ltd or any other company details.
Mr Kammerlocher has, in the original application and this miscellaneous matter, sought to rely on the BICPA Adjudication decision to support his claims with this Tribunal. A BICPA decision does not exclude an owner from lodging a dispute with this Tribunal. The BICPA process relates to money owed under a contract. Mr Sambrooks’ claim was for damages from works undertaken by Mr Kammerlocher. Whilst the Adjudication is in favour of Render Meister Pty Ltd there is nothing in the decision that indicates there was any issue concerning the identity of the parties for the purposes of that matter.
Mr Kammerlocher says he was denied natural justice in the amending of the order and seeks to have the original matter reheard.
Mr Kammerlocher participated fully in the hearing. Mr Kammerlocher had an opportunity to testify himself and to ask questions of all the witnesses at hearing. Mr Kammerlocher has now had the opportunity to provide written submissions in regard to the amended order and I have duly considered them.
Furthermore, since this application was lodged the Tribunal has delivered another decision concerning Mr Kammerlocher and Render Meister Pty Ltd.[1] In that decision, the Tribunal considered amongst other things, similar uncertainty about the identity of the contracting parties.
[1] Rendermeister Pty Ltd v Macol Pty Ltd & Anor [2013] QCAT 91 p 3 [14].
Member Gordon in that case found:
It is quite clear to me from these facts that it was Mr Kammerlocher trading as Render Meister who was the contracting party agreeing to carrying out the rendering work. Largely my reasoning is that objectively the employer would wish to engage a licensed contractor to do this work and it was Mr Kammerlocher who held this licence. Also there is nothing on the face of the quotations or the emails which suggest that there was any other legal entity involved.
The facts concerning the quotation documentation and identity of the contracting party undertaking the work are almost identical to this matter. I agree with Member Gordon it is quite clear Mr Kammerlocher, trading as Render Meister, was the contracting party who was to undertake the work.
Accordingly, the Tribunal dismisses the application for miscellaneous matters and the amended order and reasons stand.
Finally as a matter of note the QBSA licence search dated 25 March 2013, provided by Mr Sambrooks for the purpose of this application, indicates Mr Kammerlocher is no longer licenced and warns consumers not to contract with Mr Kammerlocher. Although the Tribunal does not have the benefit of the reasons behind that status the Tribunal also notes the licence search indicates that Mr Kammerlocher has previously failed to give an owner a contract information statement and failed to put a contract in writing contrary to the Domestics Building Contracts Act 2000.
It is apparent gaps in clear documentation and clarity over parties have featured in Mr Kammerlocher’s work practices and it would be in his and any future clients’ interest to rectify these practices.