Smith Development Pty Ltd v Moreton Island Development Group - [2013] QCAT 10

CITATION:

Smith Development Pty Ltd v Moreton Island Development Group [2013] QCAT 10

PARTIES:	Smith Development Pty Ltd (Applicant)
v
Maybrey Pty Ltd ACN 081 021 463 Jan-Mar Trading Pty Ltd ACN 084 234 846 ESR Management Pty Ltd ACN 063 065 207 known collectively as the Moreton Island Development Group (Respondent)

APPLICATION NUMBER:

BDL031-09

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

David Paratz, Member

DELIVERED ON:

8 January 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondents, Maybrey Pty Ltd ACN 081 021 463, Jan-Mar Trading Pty Ltd ACN 084 234 846, and ESR Management Pty Ltd ACN 063 065 207 known collectively as the Moreton Island Development Group, pay to the Applicant, Smith Developments Pty Ltd, the amount of $85,513.37.

CATCHWORDS:

Unlicensed person – building work – reasonable remuneration

Queensland Building Services Authority Act 1991, s 42

Cook’s Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 75

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

This matter has had a long history.
The matter concerns the construction of a residential house at Lot 33 Trochus Place, Moreton Island, in the vicinity of the Tangalooma Island Resort.
After a series of protracted proceedings, including an appeal, on 13 June 2012, Member Deane found that Smith was not a licensed builder at the date of signing the Contract, and carried out building work whilst not licensed. She found that ‘subject to a claim under s 42(4) of the QBSA Act being made out, the sum of $528,753.50 ought to be repaid by Smith Development to MIDG’.
She found it appropriate to provide Smith Development with an opportunity to amend its claim to seek to recover amounts as provided in s 42(4) of the Queensland Building Services Authority Act 1991 (the QBSA Act), and made directions to afford Smith Development the opportunity to pursue such a claim. She made orders for the filing of material and listed the matter for a directions hearing on 3 October 2012.
On 11 July 2012, Smith filed an amended application seeking payment of the sum of $198,603.00. This amount was calculated as follows:
Contract Price  $617,500.00
+ Variations  $109,856.07
= Amended contract price         $727,356.07
- Paid  $528,753.00
Balance = Claim  $198,603.07
A Schedule marked ‘A’ was attached to the amended application, listing sub contractor charges and materials, and extra work.
Smith filed further submissions on 27 November 2012.
The solicitors for MIDG lodged a letter dated 18 December 2012, stating that MIDG did not intend to file any further material. The respondents have filed counter-applications seeking:
a)    loss of rent and interest;
b)    monies for replacement of timber battens;
c)    certification costs;
d)    the cost of painting the exterior.
The matter is now being decided ‘on the papers’ without a formal hearing, in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith Development Pty Ltd v Moreton Island Development Group

Details

AGLC: Smith Development Pty Ltd v Moreton Island Development Group [2013] QCAT 10
Case: [2013] QCAT 10
Decision Date

CaseChat Overview and Summary

Smith Development Pty Ltd brought a claim against the Moreton Island Development Group (MIDG) for reasonable remuneration for building work carried out on a residential property at Moreton Island. The dispute arose from the fact that Smith Development was not a licensed builder at the time the contract was signed and carried out the work. The Queensland Building Services Authority Act 1991 provides that an unlicensed person is not entitled to any monetary or other consideration for carrying out building work but may claim 'reasonable remuneration' for doing so. The Act provides that the remuneration is limited to the amount paid for the supply of materials and labour, excluding any profit made by the unlicensed builder. The Act further provides that the remuneration cannot include any costs incurred by the unlicensed builder if, in the circumstances, the costs were not reasonably incurred.

The Tribunal assessed the claim by Smith Development for reasonable remuneration and allowed it in the amount of $78,509.45 plus interest. The Tribunal also assessed the counter-application by MIDG and allowed it in the amount of $4,150.00 plus interest. The Tribunal ordered that MIDG pay Smith Development $85,513.37. The Tribunal noted that it was important to avoid an unjust outcome and to not distort the operation of the QBSA Act.

Orders