Star Australia Pty Ltd v O'Brien

[2010] QCAT 85

CITATION: Star Australia Pty Ltd v O’Brien [2010] QCAT 85

PARTIES:   Star Australia Pty Ltd

V

Barry O’Brien

APPLICATION NUMBER:            BDL007-10

MATTER TYPE:   Building matters

HEARING DATE:   23 March 2010

HEARD AT:   Brisbane

DECISION OF:   Ms Julie Cowdroy

DELIVERED ON:   7 April 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   The respondent pay to the applicant the sum of $2,587.39 within 28 days of this order.

CATCHWORDS: Section 77 of Queensland Building Services Authority Act 1991

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of parties.

REASONS FOR DECISION

BACKGROUND TO THE APPLICATION:

1. On 4 January 2010, an application was received from Star Australia Pty Ltd for an order that Mr Barry O’Brien pay the amount of $2,637.39. The Tribunal had before it Invoice No 10403 dated 2 July 2009 representing the sum of $2,400.00 for the supply and installation of four security systems and vacuum inlets, with the balance of $237.39, representing interest on the amount overdue, administration and late fees.

2. The installation of the security systems and inlets was completed by 30 June 2009, as evidenced by a Completion Certificate to that effect.

3. Since that time, despite many promises that payment would be made, no money has been received. By letter dated 24 September 2009, Star Vac indicated its intention to take legal action to recover the amount outstanding. In response, Mr O’Brien wrote on 1 October 2009 that he regretted not being capable of paying the debt.

4. At a directions hearing on 1 March 2010, which was attended only by Mr T Szinger on behalf of Star Vac, orders were made that each party were to file in the Tribunal and serve on the other party any statements of evidence and submissions by 4pm on 8 March 2010. Further, the Tribunal ordered that the matter will be determined on the papers unless either party requests a full hearing by 15 March 2010.

5. By letter received on 8 March 2010 from Star Vac, a request was made that the Tribunal, in the event of there being no possibility of recovering the amount owed, order that Star Vac be authorised to enter the premises where the security systems are installed and remove them. No evidence or submissions were received from Mr O’Brien.

LEGISLATION:

1. The applicant seeks relief under Section 77 of the Queensland Building Services Authority Act 1991.  That section permits a person involved in a building dispute to apply as provided under the Queensland Civil and Administrative Tribunal 2009. The Tribunal may exercise a number of powers including the payment of an amount found to be owing by one party to another.

1. The term “building dispute” includes a “domestic building dispute” and that term encompasses a claim or dispute between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.

2. “Reviewable domestic work” means “domestic building work” under Section 8 of the Domestic Building Contracts Act 2000 which includes improvement of a home.

THE DECISION:

1. There is an order signed by Star Australia on 15 June 2009, which if signed by Mr O’Brien would constitute acceptance of the offer to supply the units. Despite the fact that Mr O’Brien has not accepted the offer in writing, it is not necessary for the contract to be in written form, given the monetary amount involved.

10.The Tribunal is satisfied that the goods, as stated on the order form and the certificate of completion were supplied and installed by the applicant. The respondent has not disputed the debt and has only indicated his inability to pay the amount owing. Consequently, the respondent is in breach of contract, in that he has failed to pay for good supplied.

11.Although the application sought relief in the form of an order that it be permitted to enter the four premises where the good are installed and remove them, this is not possible, given that such an action would infringe the rights of the residents / owners of the four homes in which the alarms are installed.

12.The Tribunal concludes that the amount of $2,400.00 is a debt payable by the respondent to the applicant, and the amount of interest in the sum of $187.39 is reasonable in all the circumstances. It disallows the claim for administration and late fees.