Smith v Condie
[2010] QCAT 635
•11 November 2010
| CITATION: | Smith v Condie [2010] QCAT 635 |
| PARTIES: | Carl Stephen Smith |
| v | |
| Gary John Condie trading as Listonia Landscaping |
APPLICATION NUMBER: BD340-09
| MATTER TYPE: | Building matters |
HEARING DATE: 25 June 2010 & 22 September 2010
HEARD AT: Brisbane
| DECISION OF: | Mr Adrian Williams |
DELIVERED ON: 11 November 2010
DELIVERED AT: Brisbane
ORDERS MADE: The respondent is required to pay the Applicant the sum of $7,504.63 comprised of:
Judgement Sum $5,569.59
Interest to 22/9/2010 $ 662.24
Filing fee $ 240.00
Costs $1,032.80
| CATCHWORDS : | Section 42 of the Queensland Building Services Authority Act 1991, Unlawful carrying out of building work; claim for restitution |
APPEARANCES and REPRESENTATION:
| APPLICANT: | Mr Carl Stephen Smith |
| RESPONDENT: | Mr Gary John Condie |
REASONS FOR DECISION
This is a decision of the Queensland Civil and Administration Tribunal arising out of a hearing held in Brisbane on 25 June 2010 in the matter of Carl Stephen Smith (the Applicant) v Gary John Condie, trading as Listonia Landscaping (the Respondent). The Presiding Member hearing the matter was Mr Adrian Williams who now hands down the decision in the matter and provides an outline, in oral form, as to the reasons for that decision. This QCAT decision arose out of an Application made to the then Commercial and Consumer Tribunal dated 12 July 2009 and filed on 15 July 2009. As of 1 December 2009 the responsibility for determining this dispute fell to the Queensland Civil and Administration Tribunal.
The facts of the matter are as follows.
The applicant and his wife Susan in September or October 2008 approached Trueline Patios and Extensions (“Trueline”) to provide a quote to construct a carport on the side and a deck on the front of their home at 37 Tarnook Drive Ferny Hills. As outlined in the Applicant’s original Application to the then Commercial and Consumer Tribunal, the Applicant’s home is sited on a sloping block. This necessitated, prior to the construction of the carport that a new driveway and retaining walls would need to be constructed at the side of the house. A retaining wall would also need to be constructed at the front of the house to support the proposed deck’s posts. Trueline indicated that they could perform the proposed work, however they would have another contractor (namely the Respondent), do the work on the construction of the driveway and the retaining walls. Trueline advised Mr Smith that they had utilised Mr Condie’s services in the past for similar jobs.
Mr Condie shortly thereafter attended the Applicant’s home and performed a site inspection.
On 7 October 2008 the Respondent provided a written quote (addressed to Mr Quinton Elliot of Trueline) in the following terms:
The scope of the works includes; Drawings, council certifications, and engineer’s report. Excavation of future driveway, concreting of same, plumbing of storm water by Listonia, and plumbing of sewer by Trueline. Retaining walls as discussed with concrete steps to rear yard from new carport slab, retaining walls to follow down hill as required. Retaining wall built to the left of the driveway as discussed, concrete slab to this area above retaining wall with concrete steps installed from existing steps to new slab. All retaining walls to be drained to Australian standards, all retaining timber in ground will be treated to H5 specifications and all concrete will be broom finished to minimise slippage of vehicular traffic.
Total incl GST $28,236.00
The Applicant accepted the quote and Mr Condie advised that he would not be able to commence work until January 2009 as he had other jobs to finalise. Mr Condie subsequently contacted the respondents in November 2008 to advise that his other work had been cancelled and he was therefore in a position to commence the work on 13 November 2008.
Mr Condie again attended the Smith’s home on 11 November with a completed BSA minor works contract for their signature (“the Contract”). The scope of works set out in the contract was as follows:
“Excavation new driveway to side of house, retaining walls steps and concrete slab.”
The total price specified was $27,530.00. The Starting Date was nominated as 13 November with 8 December specified as the date for Practical Completion. The progress payments were specified as 5% deposit ($1,370.00), Materials 50% $13,765.00, after concrete 40% $11,012.00 and Practical Completion $1,383.00.
The Contract specified that the contractor was responsible for the obtaining of building approvals and the supply of plans. As will be the subject of further observations in these reasons, the failure to provide plans and obtain council approval of the retaining walls becomes a significant component in the parties’ subsequent dispute.
In this regard Mr Smith in his Application submitted that, prior to signing the Contract he raised with Mr Condie the need for construction plans and council approvals. It is agreed that Mr Condie indicated that council approval would not be necessary as the proposed retaining walls would be less that 1 metre in height and therefore would deduct the cost of this from the original quote. This then explains the difference between the original quote ($28,236.000 and the contract ($27,530.00) a difference of $736.00.
Sometime after work was commenced the Applicant raised a number of concerns with the Respondent.
These were as follows:
1. The retaining walls were now higher than the 1 metre council approval threshold in order to reasonably retain the soil. (It was a matter of agreement at the hearing that the Local Council’s requirements were that ‘all retaining walls greater than 1 metre in height above or below natural ground level require building development approval and an engineer’s structural design issued by a building certifier and that this also applies to retaining walls less than 1 metre in height if they are built less than 1.5 metres to another building or structure.’
2. The steps installed in the staircase at the front of the house were not level, sloping noticeably from right to left.
3. The concrete slab at the front of the house was noticeably uneven.
4. The concrete stairs constructed from the carport were splayed, the front and rear posts were not in line (because the retaining wall and the retaining wall were not installed square and the steps were therefore not installed square.
5. The new driveway’s surface was uneven and contained noticeable lumps.
6. The width of the driveway was too narrow (i.e. 2.5 metres across) making it impossible to negotiate a car around the proposed deck post and into the car port.
7. The downpipe from the roof and under the driveway was not installed square at the corner.
8. The retaining wall at the front of the house was not parallel to that structure.
These complaints were essentially the issues raised by Mr Smith with the Building Services Authority (“BSA”) in his subsequent complaint.
On the basis of these discussions with the owners Mr Condie agreed by way of a letter dated 4 December 2008 that he would:
Remove and replace the slab above the steps;
Organise through Council approval for the necessary requirements for council approval;
Agree to Mr Smith withholding $2,000.00 from the progress payment until the new slab was replaced;
Agree to discount the back stairs by $345.00.
The day before this Mr Smith contacted the BSA by phone. In that discussion the BSA representative advised that Mr Condie did not hold the appropriate class of licence for the work specified in the contract. In this regard Mr Condie held a Structural Landscaping (Trade) license. Under the terms of that licence he was not permitted to carry out the erection of retaining walls that are of such a height that requires an engineer’s certification or construct a driveway intended to carry vehicular traffic.
In this regard it is worth noting that this was not disputed by Mr Condie although in his submissions to the Tribunal he provided a reasonable explanation as to how this had occurred and the steps he had taken upon this disclosure to rectify this. In this regard the Tribunal was satisfied that Mr Condie was not aware at the relevant time that his licence conditions had changed rendering a large proportion of his work under the contract illegal building work under the contract. That said the Respondent’s knowledge of this is irrelevant under the terms of Section 42 of the Queensland Building Services Authority Act 1991 which I propose to address later in these reasons.
Mr Smith, upon becoming aware of the builder’s licensing status, lodged on 5 December a complaint with the BSA outlining the matters he had previously raised with Mr Condie. By way of an email of the same date he again specified in writing the previously made complaints and that he had been advised by the BSA that Mr Condie was unlicensed to perform some of the contractual work and that he would be seeking legal advice with respect to the contract. Mr Smith then had his Solicitors, Holman Webb on 8 December 2008 write to Mr Condie giving him seven days notice under Clause 18 of the Contract to remedy an alleged failure to perform the work competently and a failure to hold the requisite licences to complete the work (both of which are defined as substantial breaches in Clause 22.1 (t) of the Contract.
On 19 December 2008 the Applicant’s new lawyers, Hollingworth and Spencer wrote to Mr Condie advising of their client’s immediate termination of the Contract on the basis that:
1. The alleged defective work specified in the earlier Solicitor’s letter of 8 December had not been rectified; and
2. An updated licence search through the BSA indicated that the Respondent had not obtained a proper license that would enable him to complete the contracted works legally.
Mr Condie through his Lawyers, Lawyers Queensland responded on 18 February 2009 alleging that the purported termination was not valid in that:
1. The Applicants had failed in their obligation to provide access to the site to allow rectification work to be performed; and
2. Clause 16.2 of the Contract permitted the Respondent to subcontract parts of the work to appropriately licensed tradespersons and that he had done so with respect to the concreting works.
I shall address these respective positions later in the body of these reasons.
Subsequent to the Applicant’s complaint to the BSA, an inspection of the works was performed by the BSA inspector, Mr Blair Lowrie on 2nd March 2009. Also present at the inspection were the Applicant, the Applicant’s father, the Respondent and Mr Jeffrey Hills s Structural Engineer and the Respondent’s concreting contractor.
At that site meeting a number of discussions took place amongst those assembled with Mr Lowrie ultimately indicating that, in his view, various rectification work would need to take place. These were subsequently recorded in the BSA Direction to Rectify dated 9 March 2009.
These were:
1 (Items 2 & 7 of the Complaint)
Construction of timber retaining walls to:
•To the rear right hand side of the Carport area;
•Left hand side of the external stairs leading to the front entry door;
•Retaining walls over 1000millimetres in height.
In that they have been constructed to a height that will not reasonably retain the adjacent material, level of finish and the requirement to obtain the necessary Certification.
Item 3 of the Complaint
Unsatisfactory installation of the downpipe to the front left hand side of the dwelling in that the alignment of the pipe is not plumb and does not meet Industry Standard with regards to level of finish
Items 4, 5 and 6 of the Complaint Placement of concrete pavement and steps to:
• Front left hand side of the existing dwelling
• Driveway pavement panel situated approximately 3240 millimetres and 6675 millimetres from the front wall of the existing garage, that does not meet Industry Standard in regard to tolerances associated with level and flatness.
It should be noted in passing that Mr Lowrie in his evidence before the Tribunal acknowledged that due to an administrative error the BSA issues a Notice to Rectify rather than a Cause Direction which was the appropriate direction to an unlicensed builder.
As Mr Condie remained unlicensed to perform the rectification work it would be necessary to have a suitably licensed contractor to do so. Mr Condie nominated Mr Hills to do so. Although there was some dispute at hearing about whether Mr Condie failed in an earlier commitment to provide Mr Smith with a written list of the names of three possible contractors the Tribunal did not consider this a significant matter given what transpired.
Mr Lowrie had indicated at the site meeting that in order for the BSA to have jurisdiction to enable it to issue a Notice to Rectify it would be necessary for Mr Smith to pay the balance of the contract price less an amount assessed as being the cost of rectification work which, Mr Lowrie assessed, as being the sum of $6,000.00.
On this basis Mr Smith paid Mr Condie the sum of $7,101.00.
As indicated above the BSA issued its Notice on 9 March 2009. Mr Smith sought from Mr Hills a quote for what amounted to additional work over and above the work required by the BSA’s Direction and he provided this on 26 March 2010. This quote included the replacement of the driveway, improving the appearance of the retaining walls on the stairs at the rear left of the carport area, amongst other matters. The total amount of the quote was $10,530.00 plus GST ($11,583.00).
The Applicant in his Application indicated that:
“This meant that in order to complete the works and rectify the driveway we would have to pay Gary Condie $28,236 plus Jeffrey Hills $11,583.00 (a total of $39,819.00). Since we were limited to a budget and already committed to $60,000.00 to the building of the deck and the carport, we were not in a position to pay the extra money to fix the driveway. We also felt that fixing the driveway to make it fit for purpose should have been included in the BSA Direction to Rectify works issued to Gary Condie. Being put in this difficult situation, we contacted Blair Lowrie from the BSA and told him we could not afford to go ahead with the BSA direction to rectify the works because it would leave us with a driveway that would cost us an extra $11,583.00 to fix.”
In his application the Applicant sought the following orders for restitution:
Payment of the sum of $24,301.58 calculated as follows:
Restitution of the sum of $7,101.00 paid to the Respondent prior to the issuing of the BSA Direction to Rectify;
Restitution of the sum of $15,135.00 previously paid under the Contract;
A claim for legal costs incurred in seeking legal advice with regard to the issue of a notice to remedy under the contract and the Notice of Termination in the sum of $2,065.58.
The Applicant, in his final written hearing submission to the Tribunal, received on 25 May 2010, sought to claim a substantially larger sum comprising of:
His labour costs incurred in removing the Respondent’s work assessed as being $21,840.00
Cost of hiring equipment to remove the Respondent’s work assessed as being $3,583.00.
Interest incurred in borrowing money to pay for the respondent’s work and to pay for legal costs to cancel the Contract assessed as being $3,047.88.
The Respondent in his Defence, sought to argue that the arrangements made through the BSA as part of the Direction to Rectify amounted to a settlement of the dispute between the parties and therefore the Tribunal lacked the jurisdiction to hear the matter. In the alternative, he submitted that the Application be dismissed, and an order for costs be made in his favour.
Before addressing the relevant law I will address aspects of the additional sums sought by the Applicant and the Respondent’s submission on jurisdiction.
As to the greatly expanded amount sought by the Applicant one month prior to the hearing this should have been properly addressed by seeking leave to amend the original Application allowing sufficient time for the Respondent to seek and be provided with proper particulars of the additional sums. The Applicant did not do so and this would be unfair to the Respondent. Even if this were not the case, the additional matters were the subject of evidence before the Tribunal at the hearing on 25 June 2010 and evidence from the two experts, with both Mr Hills and Mr Lowrie clearly indicating that the sums were both excessive and also were outside of the scope of the works set out in the original quote and the Contract.
As to the respondent’s submission on the matter being outside of the Tribunal’s jurisdiction this has previously been dismissed in an earlier decision of Dr Bridget Cullen-Mandikos of 1 March 2010 which determined that the Queensland Civil and Administration Tribunal was vested with jurisdiction to hear and determine the matter.
I therefore will address the Application and the defence on the basis of the original claims for restitution and the non-jurisdictional aspect of the Defence.
The Contractual Position
Based on the evidence it is clear that the Applicant was entitled to issue a notice to remedy a substantial breach under Clause 18 of the contract, at least as far as the issue of the Respondent being unlicensed for the contracted works. This was not disputed, however the Respondent’s lawyers in their letter of 18 February 2009 sought to argue that their client was not in breach provided, as he did, that he subcontracted the work to a suitably licensed sub-contractor, namely the concreter. This is clearly not the case. The letter from the BSA to the Applicant dated 20 February 2009 stated that the conditions of Mr Condie’s licence do not permit him, as the contractor to sub-contract what I will call the out of licence work to an appropriately qualified contractor.
I leave aside the issue of the purported termination on the basis of defective work. In their response to the Applicant’s second Solicitor’s letter submitted that the Applicants had thwarted the Respondent’s capacity to remedy the work by refusing him access to the site. This is still a matter of dispute but in the circumstances I am not required to make a finding of fact as the other basis for the termination is clearly valid.
This then leaves the issue of what is the parties’ legal position, post termination.
Relevant Legislation
For the purposes of determining this matter the principal legislation is Section 42 of the Queensland Building Services Authority Act 1991, the relevant provisions of which are recorded as follows:
42 Unlawful carrying out of building work
(1) A person must not carry out, or undertake to carry out, building work unless that person holds a contractor's licence of the appropriate class under this Act.
(3) Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so.
(4) A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed –
(a) is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and
(b) does not include allowance for any of the following –
(i) the supply of the person's own labour;
(ii) the making of a profit by the person for carrying out the building work;
(iii) costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and
(c) is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and
(d) does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person's own direct or indirect benefit.
(5) An unlicensed person who carries out, in the course of employment, building work for which that person's employer holds a licence of the appropriate class under this Act does not contravene this section.
Note for subsection (5) –
An individual must not personally carry out fire protection work unless the individual is authorised to carry out the work under this or another Act – see section 42C.
(5A) An unlicensed person who, as a subcontractor, carries out, or undertakes to carry out, building work for a licensed trade contractor, does not contravene this section if the work is within the scope of the building work allowed by the class of licence held by the contractor.
Note for subsection (5A) –
An individual must not personally carry out fire protection work unless the individual is authorised to carry out the work under this or another Act – see section 42C.
For the purposes of making an appropriate finding for this dispute the relevant section is s42 (4).
It is clear that the Respondent cannot claim pursuant to sub clause 4 (b);
(i) the supply of the person's own labour;
(ii) the making of a profit by the person for carrying out the building work;
(iii) costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and
(c) is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and
(d) does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person's own direct or indirect benefit.
I shall address these provisions in the context of the Applicant’s claim.
Firstly, in my view the Applicant is entitled to the reasonable cost of rectification of the work specified in the BSA notice. Mr Smith however seeks to claim sums over and above this as, what he terms “contractual amounts,” which fell outside of the BSA’s notice on the basis that, according to Mr Lowrie, he was unable to make any specific comment due to the lack of proper documentation including relevant plans. The clear import of Mr Lowrie and Mr Hills’ evidence was that there was no contractual or other obligation on the part of the Respondent to do so and, even if there had been, these alleged defects may not have found their way into a subsequent BSA Direction to Rectify.
As to the issue of the driveway there was some dispute as to whether it was fit for purpose. The Applicant strongly asserted that it was too narrow for vehicular traffic. He cited as evidence for this the fact that his car had become stuck and required a block and tackle to extricate it. Mr Hills asserted that, in his opinion, as the width of the driveway was marginally wider than a standard shopping centre car park it would be trafficable. Although the Applicant submitted that Mr Lowrie had expressed an opinion at the site meeting that it was too narrow and expressed this opinion to Mr Condie and therefore that the driveway would need to be widened, Mr Lowrie said he could not recall doing so. Although he did submit that he found it difficult to offer an opinion on the fitness for purpose due to the lack of documentation it was open for him, if he considered the width was inadequate, to have added it as an item to the Direction.
On this basis the Tribunal finds that it should not add any additional monetary amounts for allegedly faulty or substandard work over and above those specified in the BSA’s Direction. Mr Lowrie made it clear in his evidence that he would not anticipate that the Respondent’s work was so substandard that it required complete removal and rebuilding as the Applicant subsequently did.
What is Appropriate Restitution?
In all of the circumstances I am prepared to find for the Applicant in terms of their original claim for restitution in the Application originally filed with the Commercial and Consumer Tribunal. For the reasons outlined above, I am not persuaded to allow the additional items quantified in the Applicant’s hearing submission both on the grounds of natural justice and, in the alternative, on the basis that the evidence of Mr Lowrie and Mr Hills persuaded me that these claims were excessive in quantum and were largely outside of the scope of the original quote and subsequent contract.
In reaching an assessment of what is an appropriate amount to be paid by the Respondent I am required to allow those items set out in Section 42 of the BSA Act and then require the Respondent to pay any difference between what he may have received under the contract and the Section 42 amount, once this has been assessed.
I have not been provided with copies of the Respondent’s Invoices or Progress Claims, therefore I am not in a position to identify with any precision the correct amount. It may well be that the Respondent is not in a position today to provide this however I will allow this opportunity for submissions to be made on this aspect before finishing these reasons.
Legal Costs
Section 100 of the Queensland Civil and Administration Tribunal Act 2009 provides as follows:
100 Each party usually bears own costs
Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.
It is of course open to decide to make an award of costs in circumstances in which it may be fair and appropriate (see Section 102) cited below.
102 Costs against party in interests of justice
(1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.
(2) However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
(b) the nature and complexity of the dispute the subject of the proceeding;
(c)the relative strengths of the claims made by each of the parties to the proceeding;
[s 103]
Queensland Civil and Administrative Tribunal Act 2009 Chapter 2 Jurisdiction and procedure Part 6 Other provisions about a proceeding Page 76 Reprint 2 effective 1 December 2009
(d) for a proceeding for the review of a reviewable decision—
(i) whether the applicant was afforded natural justice by the decision maker for the decision; and
(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
(e) the financial circumstances of the parties to the proceeding;
(f) anything else the tribunal considers relevant.
In all the circumstances I am prepared to allow costs in favour of the Applicant. In this regard I take into account that the Applicant’s claim was strong in that it was conceded that the Respondent performed the work outside of the scope of his licence and this formed a large part of the Applicant’s claim. I am not prepared to make an order on an indemnity basis however. The Respondent was not deliberately obstructive in his conduct of his defence, the submission with respect to the issue of the Tribunal’s jurisdiction was not necessarily doomed to failure and was taken on the basis of legal advice that the Respondent was entitled to assume was reasonable advice.
In these circumstances I will allow the Applicant’s legal costs as outlined in the two invoices of Hollingworth and Spencer dated 2 January and 20 March 2009 and that of Holman & Webb dated 8 January 2009, to be assessed in accordance with the Queensland Uniform Civil Procedure Rules 1999.
Using the same reasoning I will order the Respondent to pay the cost of the Applicant’s filing fee of its Application in the sum of $240.00.
The matter was therefore adjourned to allow the Respondent to file and serve his material with respect to an assessment of his reasonable entitlements pursuant to Section 42 of the Building Services Authority Act 1991 and a further hearing convened once this was done.
Part 2:
Further hearing 22 September 2010
As specified above, this further hearing was convened to make an assessment of the quantum that could be allowed to the Respondent by way of reasonable reimbursement in accordance with Section 42 of the Queensland Building Services Authority Act 1991.
Prior to this further hearing Mr Condie was issued a direction to provide to the Tribunal all documents upon which he sought to rely in making this assessment.
These were as follows:
1. Copies of Employee wage sheets;
2. Copies of Statements from Steve Jones hardware & Landscape Centre (7 pages);
3. Peter Khan Electrical Tax Invoice 20081911;
4. Better Concreting Brisbane Tax Invoice 00000797;
5. MG Larder Tax Invoice # 83 (concrete cutting repairs to slab);
6. Handybin Waste Services Tax Invoices #00037945 & 00038345;
7. Allwell Builders & Party Hire tax Invoice # 53475;
8. Samford Hire Tax Invoice # 52856;
9. Wood for Life Tax Invoice # 4879;
10. Steve Jones Hire Tax Invoices # 2454, 2568, 2620 & 2629;
11. Doyles Home Hardware and Timber Receipt;
12. Wagners Concrete tax Invoice;
13. Eazy-Way Concrete Pumping Tax Invoice # 02371;
14. Universal Earthworks Docket Nos 1088 & 1406;
15. A Summary Sheet containing a breakdown of materials and third party costs.
The breakdown supplied by Mr Condie in Item 15 was as follows:
Steve Jones Landscape and Hire $2,911.76
Universal Earthworks $3,291.75
Handybin $ 390.00
Allwell Hire $ 305.02
Samford Hire $ 163.45
Wood for Life $1,224.96*
Wagner’s Concrete $ 495.00
Eazy-Way Concrete Pumping $ 453.20
Doyles Timber and Hardware $ 129.16
Peter Khan Electrical $ 167.00
Better Concreting Brisbane $5,379.00
MG Larder Building & Landscape $2,487.50
Third Party Wages $2,944.18Total $20,341.98
*It would appear this invoice was counted twice so the correct amount was $612.48
Upon the commencement of the hearing the member proceeded to go through the various invoices assisted by submissions made by the parties. At the conclusion of this assessment a number of items were either conceded by the Respondent or a finding was made by the member that an item was outside of the scope permitted under Section 42 (4) (b) (iii) of the Building Services Authority Act 1991.
The following deductions were conceded by the Respondent:
Conduit (Steve Jones Hardware & Landscape Centre) $ 16.60
Doyles Hardware Invoice $129.16
Slip Repair Coupling
(Steve Jones Hardware & Landscape Centre) $ 26.75
Circular Saw Hire (Steve Jones Hire) $137.93
Total: $310.44
In addition the MG Larder Building & Landscape Invoice of $2,487.50 was disallowed in its entirety as it related to rectification work performed by the Respondent. This resulted in a total deductible amount of $2,797.94.
In reaching a final assessment it was noted that the Respondent has to date been paid the sum of $22,236.00.
I have deducted the sum of $2,797.94 from the agreed amount claimed by the Respondent of $19,464.35 which leaves an amount of $16,666.41 as being reasonably incurred.
The Respondent is therefore required to pay to the Respondent the difference between what he has received under the contract and the sum I have determined he is reasonably entitled to under the BSA Act.
The difference between the contract sums paid of $22,236.00 and the sum I have allowed of $16,666.41 is $5,569.59.
I will allow interest to be claimed on that amount from the date of the Applicant’s filing of his application on 15 July 2009 to the date of this hearing (22 September 2010) which I assess as being $662.24.
I also order the Respondent to pay the Applicant’s filing fee of $240.00.
With regard to costs, the Applicant, in accordance with a Direction made by the Tribunal subsequently sought from his Solicitors an assessment of his legal fees in accordance with the Queensland Uniform Civil Procedure Rules. He subsequently wrote to the Tribunal by email indicating that his Solicitors had advised him it would cost approximately $5,000.00 to have the assessment made. He therefore requested that the Tribunal perform its own assessment of the legal costs.
I will therefore allow one half of the legal costs billed to the Applicant this being the sum of $1,032.80.
The respondent is therefore required to pay the Applicant the sum of $7,504.63 comprised of:
Judgement Sum $5,569.59
Interest to 22/9/2010 $ 662.24
Filing fee $ 240.00
Costs $1,032.80
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